chevron-down Created with Sketch Beta.

Fair Use in Context

Philippa S. Loengard

©2024. Published in Landslide, Vol. 16, No. 2, December/January 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Psychiatrist Erich Fromm wrote that “[c]reativity requires the courage to let go of certainties.” It is unlikely that these words were written in reference to copyright law, but there may be no greater truth right now for artists seeking to use another’s work in their own creations. These artists, often called appropriation artists, may feel new concern as they generate works that make use of preexisting pieces in light of the U.S. Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

➭ Attend the corresponding webinar, “Understanding Copyright Fair Use and Transformative Use After Recent Cases,” on January 23, 2024, at 1:00 PM (ET).

No attorney would ever suggest that a fair use analysis ever contained much certainty, but many would agree that there used to be an understanding that evaluating whether a new work’s use of an underlying creation was a fair use was basically a zero-sum game: either the use was permissible under 17 U.S.C. § 107 or it wasn’t. After the Warhol decision, however, there is a new wrinkle (depending, of course, on how lower courts interpret the opinion). Justice Sotomayor’s turn away from the overarching importance of transformation in the fair use analysis and her focus on potential market harm rather than solely on the purpose and character of the use means that we are now looking at the secondary author’s use of the secondary work rather than the use of the primary work in the secondary work. The majority in Warhol looked less at whether Warhol’s silkscreen prints made use of Goldsmith’s photograph in a way that altered the image’s character and instead focused more keenly on the ways Warhol (and subsequently the Andy Warhol Foundation) exploited the silkscreens. Justice Sotomayor refers to the context in which the secondary work exists at least six times in her opinion, stressing that the context of the secondary work’s use of the primary work is the relevant “use” analysis.

In some ways, this is not a marked departure from previous norms. Fair use jurisprudence almost always focuses on a primary artist who feels that a secondary use of their work has infringed on their market and sues for damages or an injunction. In addition, some uses, such as teaching and commentary, have always been given wide latitude to use a work with immunity from infringement. I believe Warhol, however, has added a new twist to this scenario, in which the primary artist may lose on fair use grounds in one instance but be able to bring a successful claim in another. I can find no instance where that has occurred up to this point, but this new guidance from the Court leaves both artists—the primary and the secondary—with a novel and interesting set of options. The secondary artist may now have more confidence in exploiting their works in markets clearly independent from those of the primary artist. The primary artist may now feel empowered to challenge what they feel is misappropriation of the work more frequently, undeterred if the courts find one use lawful.

Perhaps this increased potential for litigation is not what the Court had in mind when penning its opinion; perhaps it was hoping to give more certainty to the creative process. But as Fromm said, perhaps creativity can never occur with certainty. 

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Philippa S. Loengard

    Columbia Law School

    Philippa S. Loengard is the executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, where she also teaches art law.