ference.” Vanity Fair wanted to use the photo for the creation of illustrations to be included in an article about Prince. Vanity Fair engaged renowned artist, Andy Warhol, to prepare the illustrations. Goldsmith was credited for the source and was paid $400. But, Warhol went on to create additional works using Goldsmith’s photo or the illustrations he created from it. In 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to magazine publisher, Condé Nast, for illustrating another story about Prince. AWF received $10,000 for the license. Goldsmith received nothing.Shown below are the three creative works in issue in the case:Goldsmith, 598 U.S. __ (May 18, 2023) at pg. 4 (slip opinion)Id. at pg. 5.Id. at pg. 6.Goldsmith informed AWF that the use of the photo in the Condé Nast magazine infringed her copyright in the photo she provided to Vanity Fair in 1984. In response, AWF sued her, claiming that AWF’s use was “fair use” and thus, pursuant to 17 U.S.C. § 107, was not an infringement on Goldsmith’s copyright. Goldsmith counterclaimed for infringement.The federal district court in New York ruled in favor of AWF. The Court of Appeals for the Second Circuit reversed, finding that all factors of the fair use doctrine favored Goldsmith. AWF petitioned the matter to the U.S. Supreme Court, focusing primarily on the first factor of the fair use doctrine, being “the purpose and character of the use.” See 17 U.S.C. § 107(1). AWF contended that the purpose and character of its use of Goldsmith’s photograph weighed in favor of fair use because Warhol’s silkscreen image of the photograph has a new meaning or message than the original photograph created by Goldsmith, i.e., AWF claimed that its use was “transformative” and thus protected fair use.Issue. Whether the 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,” 17 U.S.C. § 107(1)—weighed in favor of

magazine. In 1984, rock-and-roll photographer Goldsmith licensed her photograph of Prince in her studio to Vanity Fair for a single use as an “artist reference for an illustration” that the magazine commissioned Warhol to create.[1] Later, Warhol used the photograph to create the “Prince Series” consisting of “13 silkscreen prints and two pencil drawings.”[2] After Prince’s death in 2015, AWF licensed one image from the Prince Series (the “Orange Prince”) to Condé Nast (Vanity Fair’s parent company) to use in a Vanity Fair commemorative edition celebrating Prince.[3] Goldsmith notified AWF that she believed that image violated her copyright, and AWF sued Goldsmith and her agency seeking a declaratory judgment of noninfringement or, in the alternative, fair use.[4] Goldsmith counterclaimed for infringement.[5]The district court granted summary judgment in favor of AWF, holding that the Prince Series works were fair uses of Goldsmith’s photograph based on the four factors enumerated in 17 U.S.C. § 107.[6] The Second Circuit reversed, holding that “all four fair use factors favored Goldsmith.”[7] AWF sought and the Supreme Court granted certiorari on the narrow question of whether the first of the four fair use factors—“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”[8] —weighed in Goldsmith’s favor.The Court’s DecisionsThe Court affirmed the Second Circuit’s decision. The opinion is a reminder that fair use is a defense to allegations that specific conduct is infringing, and that the statutory provisions addressing fair use reference that specific “use.” Consequently, “[t]he same copying may be fair when used for one purpose but not another.”[9]Writing for the majority, Justice Sotomayor summarized the first fair use factor as considering:whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced aga

March and April 2021 have seen a large amount of activity in copyright law involving the fair use doctrine, a doctrine that is often misunderstood and misapplied. The Fair Use Doctrine is codified in the 1976 Copyright Act under 17 U.S.C. § 107, and it lists the factors to be considered to determine if the use of material does not constitute “infringement of copyrighted material.” Section 107 provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.

Here, the court said: “While we remain bound by Cariou, and have no occasion or desire to question its correctness on its own facts, our review of the decision below persuades us that some clarification is in order.”The District Court’s Answers the Four Questions The lower court, in reviewing the four fair-use factors (17 U.S.C. §107) and concluding that the Prince Series was transformative, said:1) The first factor relates to the purpose and character of the use (commercial or non-profit educational purposes). Goldsmith’s “photoshoot illustrated that Prince ‘is not a comfortable person and that he is a ‘vulnerable human being’, and the photograph “reflects these qualities” while “Warhol’s Prince Series, in contrast, can reasonably be perceived to reflect the opposite.

create the illustration, and Warhol used Goldsmith’s licensed photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph”: 1984 Article, which had two Lynn Goldsmith attributions.After Prince died in 2016, Condé Nast asked AWF about reusing the 1984 Warhol purple silkscreen, but after learning that there were other works in Warhol’s Prince Series, it opted instead to purchase a license from AWF to publish Orange Prince. Goldsmith did not know about the Prince Series until 2016, when she saw Orange Prince on the cover of Condé Nast’s magazine. Goldsmith notified AWF of her belief that the work infringed her copyright. AWF then sued Goldsmith in the Southern District of New York for a declaratory judgment of noninfringement. Goldsmith counterclaimed for copyright infringement.The District Court considered the four fair use factors set forth in 17 U.S. C. §107, and granted summary judgment for AWF on its defense of fair use. The Second Circuit reversed, finding that all four fair use factors favored Goldsmith. The Supreme Court affirmed the Second Circuit, holding that the first 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,” §107(1), weighed against AWF’s fair use defense to copyright infringement because the Condé Nast-AWF license constituted “commercial licensing.”The SDNY litigation focused on whether Warhol had “transformed” Goldsmith’s photograph. A transformative work is fair use, and therefore not a copyright infringement, based on a reading of the Supreme Court’s holding in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), which explained that a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” AWF argued that the pa

Id., p. 13. Some degree of copying can help expand public knowledge, and this type of use gave rise to the fair use defense, now codified at 17 U.S.C. 107. Section 107 states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

As the Ninth Circuit pointed out more than a decade ago, “the ‘good faith belief’ requirement … encompasses a subjective, rather than objective standard,” a belief strong enough to withstand that other portion of Section 512 that imposes liability on a copyright owner for a knowing and material misrepresentation that it had formed that good faith belief when, in fact, it had not.As a Practical Matter It behooves the copyright owner or its agent or employee charged with ferreting out potentially infringing uploads to have at least a rudimentary familiarity with the fair use portion of the Copyright Act, 17 U.S.C. 107. Section 107 is brief, comprising a preamble, which identifies some—but by no means all—of the permissible purposes that might qualify a use as fair (e.g., commenting on, reporting about a copyrighted work; classroom use; etc.) and the four factors that constitute the core of a fair use inquiry: the user’s purpose, the nature of the copied work, the amount of the protected work that was copied, and the effect of such uses on the market for the original work—a checklist that a reasonably well-trained employee might master or a computer program might apply.

The Court held that the Copyright Act unambiguously contemplates fair use as a use authorized by the law. In 1976, Congress codified the application of a four step test for determining the fair use of copyrighted works in 17 U.S.C. § 107. Because 17 U.S.C. § 107 both empowers and formally approves the use of copyrighted material if the use constitutes fair use, fair use is “authorized by the law” within the meaning of § 512(c).

Notably for this case, the assistant’s criteria did not explicitly include consideration of the Fair Use Doctrine. The Fair Use Doctrine, codified in 17 U.S.C. 107, generally states that certain types of reproductions of copyright works for criticism, comment, news reporting, teaching, scholarship, or research are not infringements of copyright, and sets forth four factors in particular to be considered when determining whether a particular use is a fair use. The factors are: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work9.

This allegation goes to establish a key element in the fair use analysis – a transformative use (See Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994)).The fair use doctrine, codified in 17 U.S.C. section 107, provides that "the fair use of a copyrighted work, including such use by reproduction in copies. . .for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" (17 U.S.C. § 107).