OTW Signal, June 2023

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.

OTW Tips

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.

We want your suggestions! If you know of an essay, video, article, podcast, or news story you think we should know about, send us a link. We are looking for content in all languages! Submitting a link doesn’t guarantee that it will be included in an OTW post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

OTW Signal
  1. Muccamukk commented:

    Why didn’t OTW Legal file an amicus brief on this case?

  2. s commented:

    Why have you not issued any kind of statement about fans’ concerns re: racism on the archive and your inaction re: promises YOU made back in 2020? You must be aware of the EndOTWRacism campaign by now.

    • Muccamukk commented:

      They’re probably also aware of the calls for the entirety of the Legal Committee to resign over their treatment of OTW’s volunteers. (Which came out in discussion of #EndOTWRacism.)

  3. Impertinence commented:

    Hi guys! Any particular reason you haven’t commented on the egregious abuse & bullying your former volunteer azarias experienced at the hands of Legal & the Board? https://stopthatimp.tumblr.com/post/718834438739509248/after-neglecting-to-support-a-volunteer-who

    To recap, azarias describes an internal system where Legal insists on ownership of TOS interpretation despite PAC being the committee handling abuse reports; she describes an internal system of bullying and marginalization where Legal can unilaterally remove a volunteer on thin pretext, without consent of her committee chairs or knowledge of the Board; she describes an internal environment where volunteers can be smeared with veiled accusations of felonies because the Board and Legal dislike them; and she describes a Board that refuses to acquire tools that would allow PAC to moderate violent content and CSEM without traumatizing volunteers. In other words, you gave a volunteer serious IRL trauma and instead of addressing it when she went public, you made veiled threats to try and get her to stop talking.

    I’d personally like to know what the OTW generally and the Board and Legal specifically plans to do to address these extremely serious abuses.

  4. Guest commented:

    I’d be interested to learn if the OTWs is going to consider this very nuanced ruling in terms of fair use and the transformative nature of a work in connection with it’s own stance and ao3’s ToS when it come to the plagiarizing and derivative nature of AI generated text on the archive.
    After all any text spit out by engines like ChatGPT and Sudowrites was largely trained on the billions of fics scraped from the archive and posting generated fan text could easily fall into the same category as the Goldsmith vs Warhol case i.e that the generated text is supposed to mimic and replace real fanfic in the same context and function.

    • EchoEkhi commented:

      I think that would only make sense if a piece of work is *extremely* similar to another piece of work, ie. same plot & paragraph structure but different phrasing, to be comparable with the Goldsmith vs Warhol case. But that is likely already covered under existing plagiarism rules anyways.