Is All Fair in Pop Art and Celebrity Photography (part Ii)? in Which the Justices Turn to Economics to Level the Playing Field for Human Creatives

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2023

IS ALL FAIR IN POP ART AND CELEBRITY PHOTOGRAPHY (PART II)? In Which the Justices Turn to Economics to Level the Playing Field for Human Creatives

Brian S. Conlon

Phillips, Erlewine, Given & Carlin LLP

MCLE

(See end of this article for information on receiving 1.0 hour MCLE self-study credit.)

A few months ago, I wrote about the U.S. Supreme Court's much anticipated decision following a spirited oral argument in Andy Warhol Foundation v. Goldsmith. To refresh the reader's recollection, the case presented the question of whether the first copyright fair-use factor, "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes," weighed in favor of the Warhol Foundation's commercial licensing for a magazine cover of a silkscreen portrait (part of a series used previously in a magazine) that Warhol made based on a photographer's copyrighted portrait of Prince.¹

On May 18th, in an opening foray during what turned out to be an eventful term—a number of controversial and precedent-upending opinions at term-end that addressed LGBTQ rights, the First Amendment, affirmative action in higher education, voting rights, Lanham Act extraterritoriality—the Supreme Court issued its 7-2 decision.

The Court provided almost no direct answers to the big legal questions I felt the facts of the case raised. The majority opinion did, however, set the course for copyright law's immediate and potential long-term future. And in this, given the coming AI-content revolution, that opinion may prove crucial.

Here are the questions I posed and the answers the Court provided (sort of):

Q. When is it fair (i.e., legally faultless) to use someone else's work in creating your own and when is it not (i.e., copyright infringement)?


A. It depends in substantial part on whether the specific use competes in the market with the original work.²

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Justice Sotomayor's majority opinion seemed to hedge on that answer. It suggested a work might be transformative enough to overcome it being used to compete with the original work:

A use may be justified because copying is reasonably necessary to achieve the user's new purpose. Parody, for example, needs to mimic an original to make its point. Similarly, other commentary or criticism that targets an original work may have compelling reason to "conjure up" the original by borrowing from it. An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it.³

Justice Gorsuch harbored no such doubt. His concurrence made clear his view (joined in by Justice Jackson) that the first fair-use factor is and ought to be solely an economic inquiry:

Does Mr. Warhol's image seek to depict Prince as a "larger-than-life" icon while Ms. Goldsmith's photograph attempts to cast him in a more "vulnerable" light? Or are the artistic purposes latent in the two images and their aesthetic character actually more similar than that? Happily, the law does not require judges to tangle with questions so far beyond our competence. Instead, the first fair-use factor requires courts to assess only whether the purpose and character of the challenged use is the same as a protected use. And here, the

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