September 26, 2023

The Supreme Court docket choice in Andy Warhol Basis v. Goldsmith modified the way in which honest use is analyzed. In figuring out honest use, 4 components are examined. The primary honest use issue examines the aim and character of the use. Previous to this case, the main focus has been on the transformative nature of the work itself. The Supreme Court docket in Campbell v. Acuff-Rose Music established this transformative use evaluation when it mentioned that the primary honest use issue is an inquiry into whether or not “the brand new work merely “supersedes the objects” of the unique creation, or as an alternative provides one thing new, with an additional function or totally different character, altering the primary with new expression, which means, or message[,]. . . in different phrases, whether or not and to what extent the brand new work is transformative.” This transformative use evaluation took on nice significance and infrequently eclipsed the opposite honest use components. Previous to this case, the main focus was on whether or not the second work had a special aesthetic or conveyed a special which means. If the work was transformative, it was virtually all the time discovered to be honest use. 

The significance of transformativeness all modified with this opinion. The truth that the second work conveys a special which means or message from the primary work, with out extra, is just not dispositive. Now the main focus of the primary honest use issue, the aim, and character of the use, has shifted from a context-based evaluation to a purpose-based evaluation. The primary honest use issue will now analyze whether or not the aim of the usage of the second work is totally different sufficient from the primary to fairly justify copying.

A gaggle of distinguished documentary filmmakers, together with the makers of the Final Days of Vietnam, The Invisible Conflict, Gained’t You Be My Neighbor, and RBG, filed an amicus temporary in Warhol and claimed that the 2nd Circuit’s proposed change in the way in which honest use is analyzed “might devastate the documentary movie style.” It’s true that this opinion is sure to have an effect on documentarians who depend on the usage of unlicensed third-party materials as a part of conveying the story, however it’s not clear that the affect goes so far as devastation.

Documentarians incessantly use third-party footage with the intention to touch upon or critique the footage itself. Part 107 of the Copyright Act supplies that “the honest use of a copyrighted work, together with such use… for functions reminiscent of criticism [and] remark…. is just not an infringement of copyright.” Within the oral argument in Warhol, each Goldsmith and the US authorities agreed that “commenting on the unique [work], criticizing it, or in any other case shedding gentle on the unique [work]” is “probably the most easy method to set up honest use.” In its opinion, the Supreme Court docket reasoned that the place the use is for commentary or criticism, copying of the primary work “could also be justified as a result of copying within reason obligatory to attain the person’s new function. Additionally, the courtroom noticed that “[c]riticism of a piece…ordinarily doesn’t supersede the objects of, or supplant, the work. Reasonably, it makes use of the work to serve a definite finish.”

However what about makes use of that aren’t for the aim of criticism or commentary however for a biographical function? Would such makes use of fairly justify the usage of the underlying materials?

Take, as an example, the copyright infringement case filed by the rights holder to the Ed Sullivan Present in opposition to the producers of the Broadway hit Jersey Boys in Couch Leisure v.  Dodger Productions. In that case, Couch Leisure took situation with a phase within the play the place one of many band members speaks to the viewers instantly about how the band was coming of age throughout the British Invasion, and as he speaks, the viewers is proven a clip of The Ed Sullivan Present the place Sullivan introduces the band after which the stage actors carry out.

In Couch, the ninth Circuit mentioned that “utilizing it as a biographical anchor, [the Producers] put the clip to its personal transformative ends“ and that being “chosen by Ed Sullivan to carry out on his present was proof of the band’s enduring prominence in American music.” The ninth Circuit’s evaluation of the aim of the usage of the clip was contextual. Had the ninth Circuit engaged in a purpose-based evaluation, this issue could have favored the plaintiff given that there’s a robust argument the aim of each makes use of is extraordinarily shut – the unique being to introduce the band and the aim of the second use being to point out the introduction of the band on the Ed Sullivan Present.

Previous to the Supreme Court docket’s choice in Warhol, it was properly established that the usage of third-party content material to function a biographical anchor is honest use. It’s not so clear that may all the time be the case in gentle of Warhol. Whereas a special contextual function will likely be related, it’s not dispositive. Additional, it might be difficult to find out when the primary issue would favor copying because the willpower of whether or not the second use shares the aim or character of the unique work or as an alternative has an additional function or totally different character is a matter of diploma, and that diploma of distinction have to be balanced in opposition to the business nature of the use. There may be scant little case regulation to offer steerage.

The Warhol courtroom centered considerably on balancing the primary honest use issue in opposition to the copyright proprietor’s proper to create spinoff works. The Court docket mentioned that “Campbell can’t be learn to imply that [the first fair use factor] weighs in favor of any use that provides new expression, which means, or message. In any other case, “transformative use” would swallow the copyright proprietor’s unique proper to arrange spinoff works….” Maybe the extent to which a secondary work might or couldn’t be thought-about a spinoff of the primary is a part of the measurement of the diploma to which the second work has or doesn’t have an additional function or totally different character.

In gentle of the refocusing of the primary honest use issue, the remaining honest use components tackle renewed significance and would require deeper inquiry post-Warhol. So what may this seem like for a documentarian who makes use of a third-party clip as a documentary anchor? Some steerage could also be present in Couch Leisure. The place the clip used conveys primarily factual data, the second issue – the character of the copyrighted work – will favor the documentarian since factual data is just not as near the core of supposed copyright safety. As for the third issue – the quantity and substantiality of the portion used – if the clip is utilized in quick (in Couch, it was seven seconds), then its use could also be “quantitatively insignificant.”  

However what concerning the fourth issue, market hurt? Typically, a documentary that makes use of a clip is not going to be a market substitute for the clip’s supply. Nevertheless, what if the plaintiff actively licensed its content material for a payment? In Invoice Graham Archives v Dorling Kindersley, the courtroom mentioned that the market hurt suffered as a result of lack of license charges was not ample to sway the fourth issue the place the usage of the photographs was [contextually] transformative. Nevertheless, in Warhol, the Court docket of Appeals discovered that the Warhol Basis’s business licensing of its picture “encroached on Goldsmith’s protected market to license her {photograph}.” Given the shift in how the primary honest use issue is analyzed, even when the aim of the use is totally different, in a state of affairs the place the plaintiff licensed its content material, would the use be totally different sufficient to fairly justify a copying?   Whereas Warhol doesn’t appear to affect a documentarian’s capability to make use of third-party content material for criticism and commentary, Warhol appears to complicate the power of a documentarian to make use of third-party content material for biographical functions. This uncertainty isn’t good for documentarians or the consuming public that enjoys compelling documentaries.