Fair Use, Art Appropriation, Transformation, Equity Justice and Cultural Equity Under the Constitution: Andy Warhol Foundation v. Goldsmith

• Publication year: 2021
• Author: Alexandra Darraby

FAIR USE, ART APPROPRIATION, TRANSFORMATION, EQUITY JUSTICE AND CULTURAL EQUITY UNDER THE CONSTITUTION: ANDY WARHOL FOUNDATION V. GOLDSMITH1

Alexandra Darraby

Art Law Firm

SYNOPSIS

This article focuses on the constitutional basis and implications of equity justice in fair use analysis for the creative arts and introduces a related concept of cultural equity. Basic tenets of equity justice are neutrality, fairness, and impartiality.² These related concepts of equity should be available and open to those who seek the benefit of the copyright clause in the U.S. Constitution. Efforts by the U.S. Copyright Office to provide alternative arenas for expedited and cost-effective resolution of infringement claims are consistent with this view, including the Copyright Alternative in Small-Claims Enforcement Act (CASE).³

The fair use doctrine is an affirmative defense based on judicial common law codified by the Copyright Act of 1976⁴ under Section 107 of Title 17 of the U.S. Code.⁵ Title 17 derives from the constitutional imprimatur of Article I, Section 8, clause 8, the foundation of American patent and copyright law, empowering Congress "to promote the progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."⁶ So important to the founding of the nation, the very First Act of Congress in 1790 established copyright law, adding statutory fair use under Section 107 some two centuries later in 1978. A critical determinant of contemporary fair use is a concept introduced during the 1990s called transformation. Section 107, however, neither uses the word "transformation" nor contains the verb "transform."

Too often fair use decisions based on transformation turn not on comparison of actual use but on the user and the relative cultural and economic standing of the original author, herein described as the primary creator, and the secondary user. Fair use analysis that is not neutral introduces aesthetic conclusions from the bench based on the subjective art-worthiness of the artists, and the relative monetary value of the artist's works in the market. Supreme Court Justice Oliver W. Holmes admonished judges of the "dangerous undertaking" when courts act as art critics or make aesthetic comparisons,⁷ yet hierarchical classifications of copyright claimants persist in some fair use inquiries.⁸ Fair use is intended as an impartial judicial inquiry of fact and law, a neutral—albeit subjective—evaluation of copyright content use and public benefit. The goal of equity justice and cultural equity on issues of creative content is disserved, in the opinion of this author, each time aesthetic pronouncements, explicit and implicit, create an artistic hierarchy and enter copyright jurisprudence.⁹

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The Second Circuit Court of Appeals explained fair use consistent with the cultural equity and equity justice at the core of this article in the title case, Andy Warhol Foundation v. Goldsmith: "In conducting this inquiry, however, the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective."¹⁰ This caution combined with Justice Holmes' admonition resonate in fair use summary judgments where a court sits as both fact-finder and judge.

The worldwide web has radically changed art markets, creative platforms, sales, exhibition, and display, a reality that pre-existed the pandemic but became more prevalent and more pervasive as a result. This article identifies the impact of a web-based economy on licensing and derivatives, and how that impacts transformation. Weighting first factor transformation to tie-back to the other factors affects the entire fair use analysis. Re-examination of all factors in the digital age of what fair use and transformation mean in the arts is timely.

The author offers no opinion on use as fair or not with respect to the images in the Warhol case or on the images or artists in any other case, nor is this the purpose or intention of this article.

PROCEDURAL SUMMARY OF WARHOL

In Warhol the district court entered summary judgment¹¹ declaring plaintiff's use of a photograph by Lynn Goldsmith portraying musician Prince¹² to be Section 107 fair use.¹³ The complaint for declaratory judgment claimed the works were not substantially similar, and even if they were, the Warhol image on a magazine cover and the entire Warhol works based thereon known as the Prince Series, were transformative under fair use doctrine, thus non-infringing under copyright law. The substance of the transformation claim is that Andy Warhol was an appropriation artist; by adding embellishments to defendant Goldsmith's photograph, Warhol's appropriation—and marketing to collectors and museums—transforms works artistically, aesthetically and contextually. Appropriation according to this view is tantamount to transformation qua fair use. The district court agreed, holding in favor of the plaintiff foundation on all counts, denying the photographer's summary judgment motion and dismissing her infringement counterclaim.¹⁴

In March 2021 the Court of Appeals for the Second Circuit reversed the district court;¹⁵ evaluated de novo each factor of the fair use doctrine; and concluded as a matter of law that the underlying Goldsmith photo and the secondary works of Andy Warhol were substantially similar, an issue not decided by the district court.¹⁶ The appellate court remanded with instructions that in many ways, both in substance and effect, clarify prior fair use holdings, and provide alternatives to the earlier case of Cariou v. Prince¹⁷ without express reversal.¹⁸ After the United States Supreme Court decision in Google LLC v. Oracle Am., Inc. holding Google's use of Oracle's interface software and computer programming code fair use,¹⁹ the Foundation filed a petition for panel rehearing or in the alternative for rehearing en banc, currently pending.

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THE PARTIES

The Warhol plaintiff is a non-profit arts foundation eponymously named for the late artist Andy Warhol.²⁰ The Foundation is a licit rights owner that licenses many of his works. The defendant Lynn Goldsmith is a professional celebrity portrait photographer who founded a licensing company and whose works are featured in various media, publications and events.

FAIR USE DOCTRINE-THE "FAIR USE QUARTET+"

Section 107 of the Copyright Act contains non-exclusive four fair use factors that in any "particular case" require "consider[ation]."²¹ The four factors function like a musical chamber group, aptly coined in this article as the "fair use factor quartet,"²² the plus-sign signifying fair use properly includes additional considerations. The "factor quartet" is a musical metaphor—like a quartet each factor solos and blends, informing the voice, tone and resonance of the other three factors. The combined ensemble of each factor is ultimately harmonized by the court into a single fair use determination.

Fair use is fact-sensitive, for which there are no discrete borders and no "bright lines," inviting a holistic listening approach to the quartet ensemble that is properly shaped by industry specifics, as acknowledged by the Supreme Court.²³ Fair use is a mixed question of fact and law, a conflated legal brew of opinions, facts and judgments not easily compartmentalized. The first quartet factor is "'the inquiry into the 'purpose and character' of the use, which [in contemporary jurisprudence] turns in large measure on whether the copying...was 'transformative,' i.e., whether it 'adds something new, with a further purpose or different character,'"²⁴ a description that has been questioned in the United States Supreme Court.²⁵ The first factor is deemed of such importance by courts that it influences judicial assessments on all the others, including (2) "nature" of the underlying work; (3) amount of secondary use in relation to the underlying work "as a whole;" and (4) "the effect of the use upon potential market for or value of the copyrighted work,"²⁶ discussed below in context of both the district and appellate Warhol opinions. In musical terms, transformation empowers the first factor with the roles of oboist, first violinist and conductor.

ART APPROPRIATION

The Supreme Court has long admonished the judiciary to avoid the role of art critic,²⁷recognizing that in the creative arts there are few entirely new and original works.²⁸ Artistic quotation is part of the evolution of artmaking, as this author has stated in commentary, and its validity and legitimacy is not at issue here.²⁹ Artistic quotation dates from the neandrathalic era and the wall paintings in the Caves of Lascaux to the sculptural artifact Venus of Willendorf and perhaps earlier.³⁰

"[A]rt making...has evolved over thousands of years based upon the principle and practice of copying—quotation, imitation and appropriation...Appropriation in contemporary times refers loosely to the borrowing of preexisting imagery, advertising, artwork, or other sources created in one context to reconfigure a new artwork in a new context, with the intention of revealing different meanings and associations."³¹ Appropriation art is a generic descriptor for certain contemporary artworks that copy artworks or imagery of others without authorization or license. Appropriation is not in the art canon as a genre, movement or tradition because the act of copying sources to creative process of artmaking over millennia. Although copying is a legitimate and long-established core of art practice, all copying is not alike. Some art copying is artistic quotation; other copying can be plagiarism, fakery, fraud, or infringement.³² Notwithstanding that copying sometimes is incongruous with copyright law, it does not follow that unlawful copying is incompatible with copyright...