Highlights from AWF v. Goldsmith Oral Arguments
In the Andy Warhol Foundation for the Visual Arts v. Goldsmith, the oral arguments were fascinating, but little of it was completely unexpected – the biggest twist was the AWF side taking the position that the Second Circuit didn’t consider the change of meaning or message (they demonstrably did), and stating that the Goldsmith side saying that a change in meaning or message can be factored in was a significant admission they had not previously made (also factually inaccurate). This was an argument they had been priming in their certiorari briefs, but I was surprised that they added it in at the end.
Also worth mentioning was a less-foreseeable hard pivot to the fourth factor (market effect), and a reasonably eloquent argument from the government attorney weighing in on the statutory right to derivatives (impressive overall, but became slightly clumsy at times when her argument stalled out while finely-parsing some language like “essential” vs “necessary” when pressed by the Justices).
Change of Meaning or Message
Let’s open up with a quote from AWF:
We think the district court below correctly recognized that the transformative meaning or message was so significant here that that would mean that we win under Fact 1 and, in fact, you know, for the other reasons under the other factors that we also win the whole case.
If you disagreed with us on that, I think what you could do is make very clear that the Second Circuit’s banishment of meaning or message from the inquiry was wrong.
As I feel the Goldsmith side made clear, they believe that the Second Circuit’s analysis for fair use was correct, and it did contemplate a change in meaning or message, but said that a fair use analysis could not pivot “merely” upon that.
This is where I become frustrated with the AWF side – a much more nuanced argument of a 180-degree turn in meaning or message that is demonstrable to the average Joe could form a basis for a more reasonable argument that I could potentially be sold on… that was not the argument that AWF went with.
Instead, they slipped in the argument
With respect to meaning or message, I understood my friend Ms. Blatt to concede, she said it was absolutely true that you could consider meaning or message at Factor 1 as part of the – the purpose or inquiry. She said that.
I took that to be a very big difference from what she said in her brief. In page 2 she says it would be a fool’s errand to conduct that analysis. And, on page 22 of her brief she says that courts are just incapable of doing this.
Turning to page 22 of Goldsmith’s brief, we see:
AWF’s any-new-meaning-or-message test is manipulable and would inject instability into multi-billion-dollar licensing markets across creative contexts. Courts cannot sensibly discern the meaning of art when artists, critics, and the public often disagree about what art signifies. Copyists could always assert a different intent and claim fair use. For other copyrightable works, like puzzles, toys, or architecture, identifying the “meaning or message” is befuddling. Confusion over what AWF’s test entails invites decades of follow-on litigation.
I think that’s a very significant concession and we agree with that concession. We think that it requires a reversal in this case or at least a vacatur of the Second Circuits ruling because on pages 22 to 23 of the Second Circuit’s analysis, I think they were unambiguously saying that courts cannot try to do this meaning or message inquiry and then they go on to say, instead, you need to look at the degree of visual similarity… they would still excommunicate meaning or message from the Factor 1 analysis. We don’t think that’s right. We don’t think it’s consistent with the text.
Turning to page two of their brief, while they do cut a little closer to what the AWF side claims, I still find a good amount of daylight between the Goldsmith argument and AWF’s description thereof:
Petitioner Andy Warhol Foundation (AWF) would throw the traditional fair-use test overboard. AWF isolates one fair-use factor, “the purpose and character of the use”—in the Court’s shorthand, a “transformative use.” According to AWF, infringing works are transformative, and presumptively fair use, if they add new meaning or message to the original.
But the Act does not refer to “new meaning or message.” From the common law onward, adding new meanings to original works has never absolved copiers of liability for infringement. This Court and others have instead asked whether copying is necessary to accomplish some distinct end, such that the new use stands on its own without substituting for the original. Parody, news commentary, and criticism are paradigmatic examples where some copying is necessary for the secondary works to exist. Those distinct purposes usually prevent secondary works from supplanting originals.
AWF’s meaning-or-message test is completely unworkable and arbitrary. Asking if new works are “reasonably perceived” to have different meanings is a fool’s errand. Creators, critics, and viewers disagree about what works mean. Nor could AWF’s test apply to many copyrightable works—like marine charts—that harbor no hidden depths.
AWF’s test would transform copyright law into all copying, no right. Altering a song’s key to convey different emotions: presumptive fair use. Switching book endings so the bad guys win: ditto. Airbrushing photographs so the subject conforms to ideals of beauty: same. That alternative universe would decimate creators’ livelihoods. Massive licensing markets would be for suckers, and fair use becomes a license to steal.
I find this page of the brief a bit overly-broad. Still, I disagree with AWF’s categorization, particularly in context with the rest of the brief, which spells out that a change in meaning or message can be contemplated but not dispositive.
Fourth Factor Pivot
Even a brief reading of the certiorari and amicus briefs demonstrate that a change in meaning or message was the most important issue in everyone’s argument by a wide margin. AWF pivoted hard to the fourth factor, giving it more time and argument than a change in meaning or message as the factor that would prevent copyright infringement if change in meaning or message is given broader leverage. Considering how George R.R. Martin, Chuck Palahniuk, and the estate of J.R.R. Tolkien’s (if they are still benefitting from his works) net worth jumped significantly after their authorship went to television or the big screen even after factoring out direct payments for licensing of said media, this argument was all but dismissed by several Justices.
These Justices, with Sotomayor and Coney Barret leading the charge, used the Tolkien example and highlighted how many movies change important characters, settings, and plot points when they jump media. This can include changes as broad the 180-degree turn in Fight Club, where the narrator goes from having Operation Mayhem completely fail in its bombing campaign due to defective bombs and waking up in a mental institution run by Operation Mayhem, to succeeding in every bombing but the one which the unnamed narrator (played by Edward Norton) diffused, and he and Marla watched on as the largest buildings defining the skyline are destroyed. Considering how this movie with a significant cult following got me and millions of others to buy Fight Club and Choke, I don’t think it harmed Palahniuk, his legacy, or his wallet - does producing a good enough infringing property to provide positive marketing for the author of the original absolve one from needing to pay licensing fees to said author for using their work? If so, major studios and famous directors would likely never have to pay licensing fees to writers again.