Every month in OTW Signal we’ll take a look at stories that connect to the OTW’s mission and projects, including legal, technology, academic, fannish history, and preservation issues that are important for fandom, fan culture or transformative works.
In the News
An important U.S. legal case involving fair use exemptions in copyright law was heard before the U.S. Supreme Court last year. With their decision still pending, OTW Legal staffer Rebecca Tushnet was asked to comment for an article which was examining possible implications.
This spring, the US Supreme Court is expected to rule on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case that will determine whether a series of images Warhol created of Prince were adequately transformative, under the fair use doctrine of the Copyright Act, of the photograph he used for reference. Put another way, the court that overturned Roe v. Wade is being asked to determine when an act of creation begins. Legal scholars everywhere are watching.
“Quite obviously this court has no trouble upending precedent,” says Rebecca Tushnet, a professor at Harvard Law School and founding member of the Organization for Transformative Works who submitted an amicus brief in the case backing the Warhol Foundation. “Anything could happen.”
Since then, the Supreme Court has released its opinion in the Warhol Foundation v. Goldsmith case. The Court affirmed the finding that, when the Warhol Foundation licensed an image of Andy Warhol’s lithograph of Prince to illustrate an article about Prince, that was not a transformative use of Lynn Goldsmith’s photograph, on which the lithograph was based. Although this was not the result the OTW had advocated for, the way the Court reasoned means that fanworks do not have much to fear from the decision.
Specifically, the Court focused on the particular use of the works at issue—the Warhol Foundation’s licensing of the lithograph to illustrate an article about Prince. The court specifically did not rule on whether Warhol’s creation of the lithograph itself was transformative, and noted that its result could have been different if the question were whether the original lithographs hanging in a museum were fair use, or if the license had been for an article about Andy Warhol as an artist. The Court’s emphasis on the commercial licensing of the lithograph, which competed with the licensing market for Goldsmith’s photograph, indicates that noncommerciality remains a very important fair use factor. Even if a fanwork might be unfair if it competed commercially with an authorized version, a noncommercial, noncompeting use (that is, most fanwork use) remains fair. For more, Creative Commons has also analyzed the decision, and agrees that the focus on specific uses provides many fair users with a path forward.
In addition, the Court focused heavily on how similar the two images appeared when set side by side—it considered Warhol’s process to result in a relatively mechanical copy with the same purpose of depicting Prince visually. The Court’s focus on visual similarity may also limit the impact of the case; if courts understand the amount of work that goes into making a transformative work, and can see the differences from the original for themselves, they may be more inclined to see how the work has a different, transformative purpose.
For anyone wanting to know more about how fair use functions in U.S. Law, OTW Legal has written explainers regarding Fair Use for fans in the past. One can also see documents pertaining to all their work in their section of the OTW website.
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