Saturday, March 27, 2021

"Aren’t we still, basically, in the dark?" (UPDATED 3X)

That's how I ended my post on the Second Circuit's Prince-Cariou decision, back in 2013.

After yesterday's decision in the Warhol-Goldsmith case, I'm afraid we're more in the dark than ever.

In my initial post on the District Court decision in the case, I said there were two ways to look at it.

One was that "this Judge saw this particular use as transformative.  If you put the same facts before another judge ... the result could very easily have gone the other way.  On this reading, there's still no way to have any confidence about how any given fair use case will be decided."

The other was to read it as standing for the proposition that "as long as you can make a reasonable, good faith case that your work is transformative (even if there are other interpretations in which it's not), it's fair use." That would have been a big deal in fair use jurisprudence.

There's no support in the Second Circuit opinion for that second reading, so we're back to the first: these Judges saw this particular use differently. The closest thing I can see resembling a guiding principle is that the second work must be "in service of a 'fundamentally different and new' artistic purpose and character" such that it "stands apart from" the first work. It doesn't have to be the case that the first work is "barely recognizable" within the second work, but it is the case that the second work "must, at a bare minimum, comprise something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material." Ok, good luck with that.

The opinion is here.

Jeanne Fromer says "the court seems to focus merely on the literal differences between the Goldsmith photograph & Warhol's Prince series in finding no transformativeness, which is something that Cariou v. Prince & Blanch v. Koons had very much rejected by looking to the message conveyed by the works" and that she "hope[s] the Second Circuit uses one of its rare en bancs to revisit this decision .... Fair use in art has become a bit messy in the Second Circuit with each panel pointing in a somewhat different direction."

More commentary as it comes in.

UPDATE: Sergio Muñoz Sarmiento: 2nd Circuit delivers devastating blow to appropriationists.

UPDATE 2: Artist/lawyer (and friend of the blog) Dave Steiner emails: "The court's holding is correct (no fair use for Warhol's Prince magazine covers), but the court missed an opportunity to clarify that the analysis depends on the context of the secondary work's use: as art works, the secondary works may be fair use even though they are not when reproduced on mass-produced, highly commercial magazine covers. With unique art works, the public interest is more likely to outweigh any commercial aspect and there is unlikely to be market substitution. Sullivan and Jacobs almost have it right: the court should dispose of the transformative test altogether because not only is it not supported by the statute, the statute contradicts it (and despite its attempt in Campbell, the Supreme Court cannot rewrite the statute: authors have the exclusive right to prepare 'transformed' works, so 'transformative' uses are not fair by definition), and instead rely on the fourth fair use factor (unique art works rarely cause cognizable harm to the market for the original work, while licenses for mass-produced magazine covers do)."

UPDATE 3: Brian Frye: "I hear Steiner's argument, but disagree that the decision is correct. In my opinion all that should matter is that the photo and the paintings aren't substitutes."