Andy Warhol - Supreme Court Justice
Soup Cans and Silkscreens
The Supreme Court served up a spicy meatball yesterday (May 18, 2023). The Justices traded an unusual number of barbs while grappling over a far-reaching aspect of copyright law: fair use. (Sometimes the most nuanced questions elicit the most forceful protestations of surety. This issue certainly did that.)
But it's Andy Warhol who actually (unwittingly) set the bounds of fair use under the Copyright Act. He unquestionably borrowed other folks' works to make his own art over the years. And he unquestionably added an artistic spin to the works he borrowed. His uses over the years bookended a seemingly unrelated event: the development of Java software and the Android operating system for cell phones. Here's the chronology, as seen through the lens of fair use / copyright.
A sandwich of artisan bread with computer-programmed meat.
Each case involved an artist (e.g., Warhol or some software developers) copying someone else's work and adding their own improvements to it. The right to copy a creative work, however, belongs only to the original creator. Without more, improving that work infringes the original creator's copyright.
In that regard, the same law applies to copying portions of source code as it does to Warhol's use of a squeegee to pull ink through a silkscreen mesh outlining Prince's face.?Each involves the question of whether an otherwise unlawful use of someone's work is allowable. Whether it is "fair."
Determining whether a use is fair necessitates applying four factors:
Warhol's use gave the Supreme Court fits when it came to the first factor ("the purpose and character" of the use). That factor is sometimes referred to as the "transformative use" factor. It asks, in a sense, whether a use has a such further purpose or different character that it can be said to be "transformative." Op. 16. In the quote below, the Court rearticulated the transformative use (first) factor. The result is significant—to Warhol, to source code developers, to marketing content creators, to many of us.
[T]he first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.
Op. 19 (emphasis added.) I underlined the three high points of the test. (Yes, the first factor of a four-factor test, which already has two names, now has three subparts.)
But I think the end result is actually pretty straightforward: the focus of the test is on the purpose and character of the use. Not so much on the purpose and character of the allegedly infringing work. Courts historically analyzed the new content of the allegedly infringing work. They considered whether a later artist added novel features, new commentary, or artistic content to an original work sufficient to make it transformative.
After the Warhol case, we need to recalibrate our approach. When analyzing fair use, one must—at least initially—disregard the content of the allegedly infringing work at issue. They should look more closely at the objective purpose for which each work has been used. The content of the latter work might explain the subjective purpose that the alleged infringer intended. And those facts are still (somewhat) relevant to the analysis. But they should not cloud the more salient, purpose-based perspective. See Op p. 5, 21 n.10.
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I'll support my assessment with a mental exercise. I believe the Warhol opinion can be explained, in large part, without describing any artistic content. Campbell's soup labels were used to advertise and sell soup (on store shelves). Warhol's copying and embellishment of the those same soup labels was used to comment on consumerism (in a museum). That use was allowed (i.e. "fair").
But, when it came to the Prince photos, the purposes were too similar. Goldsmith's portrait was used to write about Prince (in a magazine). Warhol's copying and embellishment of that same photo was used to write something different about Prince (in a different magazine). Thus that latter use was not allowed.
That is not to say that the analysis will always be so simple. There is a question of how broad or narrow the "purpose" should be articulated. For example, characterizing various uses as "in magazines to illustrate stories about Prince" was appropriate in the context of the Warhol analysis. Op. 22-23. But one could not have defined those "purposes" as broadly as simply "commercial" or "commercial licensing." Op. 23 n. 11. On the other hand, neither could Warhol's use be construed so narrowly as creating content that conveys a "new meaning or message." Op. 28. And even then, that latter articulation of the purpose was still relevant to the overall question. It was just not dispositive; necessary maybe, but not sufficient, for fair use.
On top of all that, there's the question of where the Google case comes in. What happens when the semantics above meet source code?
The majority and the dissent in the Warhol case fought over that question, whether Warhol and Google are consistent. In terms of the applicable of the "purpose" question, it's not immediately evident the two opinions are consistent.
In my opinion, it was the "justification" portion (the third subpart of factor 1) that actually carried the day in Google. The Android developers were justified in copying the declaring API code because of technical realities. See my post here.
However, when it comes to aligning the cases in terms of the "purpose" part of the test (the first subpart of factor 1): we have some work to do.
Copyright Law Is Confusing
A few anecdotes.
According to the Supreme Court, use of a "transformative" work qualifies as a fair use defense. That concept is distinct from (but can overlap with) an artist's affirmative right to create derivative works of their own works. One way of creating a derivative work is to "transform" it. The original work can then said to have been "transformed." 17 U.S.C. § 101. But that question is distinct from the transformative work question addressed in the first factor above. Thus, the Court explained, "transformative" and "transform[ed]" do not mean the same thing. Op. 16.
Fair use is determined by a four-factor test. The Court only analyzed the first factor in the Warhol case. But it determined that "the first factor [the purpose and character of the use] relates to the fourth, [effect of the use upon the potential market]." Op. 24 n.12. However, the relationship between the two "is not absolute." Id. Further, the fourth factor is the "most important" factor, but it cannot be "treated in insolation" from the other factors. Even more, the Warhol majority determined that "[w]hether the purpose and character of a use weighs in favor of fair use is . . . an objective inquiry into what use was made." Op. 33. But the Google majority stated that "good faith" (a subjective metric) plays a role in the analysis of the first factor. Google Op. p. 27.
The Court in the Warhol case relied extensively upon another seminal Supreme Court case: Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579. It also discussed at length Warhol's Campbell Soup Can series. But the Campbell case had nothing to do with Warhol or Campbell's soup. It involved 2 Live Crew's rendition of the song "Pretty Woman."
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