OTW Signal, May 2021

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

Several stories in the news lately have been about developments in U.S. copyright law that have implications for fans. This month we focus on two of them in particular: Warhol v. Goldsmith and Google v. Oracle.

The first of the two cases, Warhol v. Goldsmith, comes from the U.S. Second Circuit Court of Appeals. (The Second Circuit hears federal cases from New York, Connecticut, and Vermont.) This case focuses on fair use and discusses what it means for a work to be “transformative”. Here’s what OTW Legal has to say about the case:

The case considered Andy Warhol’s use of a photograph by rock portrait photographer Lynn Goldsmith as the basis for a series of screen-prints. The situation was complicated by the fact that Goldsmith had given permission for Vanity Fair to have an artist (who turned out to be Warhol) to make one work of art based on the photo, on the condition that Vanity Fair gave credit to Goldsmith–but Warhol made more works than permitted. When those additional works were eventually published, they didn’t credit Goldsmith. The court held that Warhol’s works infringed Goldsmith’s copyrights.

So what does this case have to do with fanworks? Well, it addresses when it is fair use to use a work of art as the basis for another work of art without permission. One of the fair use considerations is whether the resulting work is “transformative”–that is, whether it transforms the meaning, message, or purpose of the underlying work. The court in Warhol v. Goldsmith took a narrower view of transformativeness than it had before, holding that although Warhol’s work made significant changes to Goldsmith’s, the result did not have a “fundamentally different and new” artistic purpose and character, and therefore was not transformative.

This case is far from the final word on fair use and transformativeness, however. It only governs one geographic portion of the U.S., and many commentators have noted that it is inconsistent with the U.S. Supreme Court’s rulings on fair use, including the Google v. Oracle case that the Supreme Court just decided, discussed below. The Second Circuit may revisit this decision–in fact, members of the OTW Legal team have argued that it should be re-heard–and it may be appealed to the U.S. Supreme Court. If it goes forward, OTW Legal will continue to monitor and participate in advocacy surrounding the case.

On the other hand, the U.S. Supreme Court has taken a much broader view of transformativeness and fair use than the Second Circuit. As an article in the New York Times points out, the recent decision of the Supreme Court in Google v. Oracle America could have an effect on other cases, ones which could lead to more legal protections for artists and those creating fanworks. Here’s OTW Legal’s take:

Although Google v. Oracle was about computer software, the Supreme Court’s decision demonstrated its dedication to the fair use doctrine as a basic principle of copyright law–and especially to the idea that fair use is necessary to ensure that copyright law promotes progress rather than standing in its way. In that context, some insights from the Supreme Court’s opinion are directly relevant to fanworks. First, the Supreme Court held that Google’s use of copyrighted Java code lines in the Android operating system was “transformative” because Google’s purpose was to create something new and innovative–a new computing environment–rather than mimic what already existed. Second, the court held that Google’s use was fair use because, rather than detracting from the market for Java, Google’s use of copyrighted code lines enhanced that market by expanding networks of Java-trained programmers, and benefited the public overall.

Both the court’s progress-focused definition of “transformativeness” and its consideration of how some copying can benefit markets and public welfare are good for fans and fanworks.

OTW Tips

AO3’s Known Issues page is a good place to check if you’re having problems with the site. Updated earlier this year, this page lists a number of problems that AO3 users may run into, whether when creating post drafts, importing works, or problems connected to specific browsers. You can find out what workarounds may be available, or how to avoid having the problem. And if your issue is not listed there, you can always contact our Support team.

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