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Why the Decision Is Music to My Ears

Marc D. Ostrow

©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.

In the three decades since the high court injected the concept of “transformative” use into the analysis of the first factor under 17 U.S.C. § 107 in Campbell, its application by the lower courts has expanded fair use into the realm of licensable “derivative works.” The Warhol decision properly resets the balance between a transformative fair use and a derivative one. Since Campbell was a music case, a look at how some “transformations” of music are licensed demonstrates why I think the Warhol decision is correct.

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

The Andy Warhol Foundation (AWF) argued that Orange Prince is immediately recognizable as a Warhol and conveys a new meaning or message to the viewer than what Goldsmith’s black and white photograph expressed. The U.S. Supreme Court rejected the idea that Warhol’s work was “transformative,” stating that to accept AWF’s argument would put the Court in the unenviable position of art critic to determine the difference in meaning between the two works and would “create a celebrity-plagiarist privilege.” Rather than trying to divine how Warhol’s meaning or message differs from Goldsmith’s because of his recasting of her photograph, the Court looks to the language of the first factor, “the purpose and character of the use,” and analyzes whether Warhol’s use is for the same or a different purpose from Goldsmith’s. This is far closer to an objective standard than looking to the “meaning” of the works, and the Court’s finding in favor of Goldsmith is in line with the treatment of analogous uses in music.

Imagine if John Williams arranged Aaron Copland’s “Hoedown” for concert band. Just as Warhol changed the color and shading of Goldsmith’s Prince picture, by adapting the Copland orchestral piece to be played by a wind ensemble, Williams would change the timbre or “color” of the piece and imbue the work with his immediately recognizable style. Regardless of any message conveyed in the arrangement, it would need to be licensed as a derivative work whether it was created by John Williams or Joe Blow. Similarly, if Taylor Swift wants to do a cover of Joni Mitchell’s “River,” she would need to pay for the privilege, just as any other artist would, regardless of any new meaning in Taylor’s version. While one might counter that “musical arrangement” is expressly listed in the definition of a “derivative work” and that there is a compulsory license for music covers, no artist, however famous, may claim these uses to be fair ones.

Many visual artists incorporate prior artwork into their creations. The Second Circuit’s Cariou case is the high-water mark for finding “transformative” fair use in visual arts appropriation cases. An equivalent of “appropriation art” in music is the sampling of preexisting recordings in new ones. Samples have been cleared since at least 1991, when a district court, citing Exodus 20:15, deemed unlicensed sampling to be theft. Similarly, the use of preexisting music in film or TV typically requires synchronization licenses. Yet the creation of new music and audiovisual works using preexisting music continues to thrive while the creators whose work is used get paid.

Justice Kagan’s dissent concludes with a dire prediction about the majority’s decision: “It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.” Based upon decades of music licensing practice, I respectfully disagree.

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    Marc D. Ostrow

    Romano Law, PLLC

    Marc D. Ostrow is senior counsel in the New York office of Romano Law, PLLC. His practice focuses on entertainment and intellectual property matters, with an emphasis in music law.