Friday, June 17, 2022

Amicus of copyright law professors in Warhol Foundation v. Goldsmith

 Available here. Thanks to all who participated!

Summary of argument:

If the meaning of artistic works were objective, an art appreciation class would be like a standard math class: It would have only right and wrong answers. But the skills of interpretation are not calculation skills. Much art would be at risk if fair use inquiries ignored reasonable audiences’ views about when a new creation based on an existing work has a new meaning and message. 

This Court held in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and reaffirmed in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021), that an inquiry into whether a work is a fair use requires evaluation of whether a second work has a different message, meaning, or purpose. Without such an evaluation, the presence of substantial similarity—a predicate question before fair use is relevant—turns into a rejection of fair use despite the statutory command. 

Because meaning matters, substantial similarity and transformativeness are not mutually exclusive. In some cases, some reasonable audiences will see new meaning, while others will not. The solution is not to reject one reasonable view in favor of another—that would be the very aesthetic discrimination the law has long rejected. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903) (explaining that treating the reaction of the general public as dispositive would “miss some works of genius,” and also that, at the same time, “the taste of any public is not to be treated with contempt”). Instead, the Court should recognize the common existence of varying interpretations of artistic works. Where a reasonable, identifiable audience recognizes new message and meaning, the transformativeness factor favors fair use. The existence of that audience further bears on the market effect factor because it shows that the accused and accusing works are not pure substitutes. 

By reaffirming Campbell and Google, the Court can correct three key errors of the opinion below. The primary error was in refusing to consider whether Warhol transformed the meaning of the original photograph. As this Court has emphasized, the factors interrelate. See, e.g., Campbell, 510 U.S. at 586-87 (“[T]he [factor three] enquiry will harken back to the first of the statutory factors, for, as in prior cases, we recognize 3 that the extent of permissible copying varies with the purpose and character of the use.”); id. at 591 (same for factor four, market effect). The error on factor one therefore generated other, inherently related mistakes: The court below refused to consider, in factor three, how much of what Warhol took from the photo was original expression and how much was unprotectable. Likewise, the court below erred in treating the accused and accusing works as market substitutes for purposes of factor four (market effect) because it refused to consider that the works appealed to different markets for different reasons. 

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