Felix Cohen would agree that transcendental nonsense in the law of copyright exists, and is in fact inevitable because "intellectual property" is transcendental nonsense. Whether one set of bits has been "transformed" when it has become another set of bits is inherently undecidable, as I pointed out in 1999. But a jury can assess whether it is fair use for Warhol to base a painting on a Goldsmith photograph without securing rights. So one might expect you to come out for a reading of section 107 that makes sense to realists. But instead you seem to be concerned with the value of paintings on the art market that make use of copyrighted source materials. Isn't that a peculiar end to the inquiry?

Why the Transformation Consideration Underlying the "Purpose and Character" Factor should be Replaced

What are the implications?

Not quite. §107 says that these factors shall be considered, but they're not exclusive.

The statute provides that when employing the fair use test, courts must equally weigh and evaluate the purpose and character of the use, the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work.

Therefore, also not quite. Juries should be charged that they should consider these, as well as such others as they consider to be supported by evidence. The standard of review of the jury's decision is deferential to jury fact-finding.

No. There are situations in which mere copying would be fair use. Academic fair use is a good example. You are treating "transformation" as a requirement, but that's not law.

You assert this, but you don't show it. Because there's no requirement of transformation, there is merely the possible argument that a particular use is non-infringing under §107, because, considering a number of factors including the transformation made in the work (by way of parody, satire, annotation, adaptation, or other potentially infringing activity) it is on the whole entitled to the equitable defense of fair use. Nothing requires juries to make any particular decision, or limits what evidence the judge sitting alone may consider or what conclusions of law she may reach from it.

This approach is problematic for a number of different reasons. First, most judges and juries do not have formal or technical experience in the art space, and thus, are not properly equipped to make well-informed decisions about what a piece of art represents. While oral argument and testimony may provide specific insight, judges and juries typically lack the required training needed to fully analyze, deconstruct, and scrutinize art. Well-qualified experts acting in good faith—to say nothing of judges and juries—can reach dramatically different conclusions about a work's meaning. Second, the “purpose and character of the use” factor inherently undermines the value behind artistic dissemination and consumption. My experience as an art history major has taught me that an artwork's meaning/message is incredibly subjective and individualized. It is constantly diverging and evolving as it leaves the artists' possession and interacts with the its viewers' personal experiences, values, and interests. In essence, a particular work's meaning is different for everyone and cannot be properly fastened to one general conception. Therefore, allowing the courts to determine the meaning/message of a work (or limiting its meaning to one static, unilateral conception) would be entirely problematic for both artists and society at large because it would lead to unfounded, un-informed, and wholly arbitrary results.

I don't think the latter section of the draft, about Goldsmith, which is useful, can remain unrevised in light of whatever follows from weighing the arguments in the first part. So let us get §107 and its procedural implementation clear first. Then we can assess better arguments about whether something is wrong with the way it works, when that has been accurately described.

Judges and Juries as Art Critics?

-- By MaxKingsley - 05 Apr 2023

Introduction

The Supreme Court’s ruling in Warhol v. Goldsmith poses significant consequences for copyright law, the art world, and the authentication of artworks. The case revolves around the iconic image of Prince, photographed by Lynn Goldsmith and later reproduced by artist Andy Warhol. When Prince died in 2016, Vanity Fair printed one of Warhol’s reproductions, and Goldsmith promptly filed a copyright infringement lawsuit against the Andy Warhol Foundation for the Visual Arts for use of her photograph. Much of the litigation focused on whether or not Warhol had transformed Goldsmith’s photograph to give it new meaning (a requirement under the “purpose and character of the use” factor of the fair use test), which was central to the Foundation’s argument that Warhol’s reproduction was legal. This essay will thus be an examination of the “purpose and character of the use” factor of the fair use test (specifically as it was applied in Warhol v. Goldsmith), discussing its broad implications on the art world and the law.

What is the fair use test?

The fair use test is a balancing test to determine whether an artwork that utilizes another individual’s intellectual property can be an infringement on the original owner’s copyright. To determine whether one is within fair use, the law calls for a balanced application of four factors, which come directly from the fair use provision, Section 107 of the U.S. Copyright Act. The statute provides that when employing the fair use test, courts must equally weigh and evaluate the purpose and character of the use, the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work.

What is the “purpose and character of the use”?

The fair use statute provides some, but not complete, guidance to courts when determining whether an artwork meets the requirements of the first factor, the purpose and character of the use. The fair use statute indicates that courts should favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed into something new or of new utility or meaning. Therefore, to be considered fair use under this factor, an artwork must have fully transformed an original artwork to the point that it gives the work an entirely new meaning.

Are judges and juries equipped to become art critics?

The legal standard under the “purpose and character of the use” factor that a work must be transformed to give it new meaning forces both judges and juries to step into the role of art experts, requiring them to make uninformed decisions about the particular meanings and messages behind different artworks. This approach is problematic for a number of different reasons. First, most judges and juries do not have formal or technical experience in the art space, and thus, are not properly equipped to make well-informed decisions about what a piece of art represents. While oral argument and testimony may provide specific insight, judges and juries typically lack the required training needed to fully analyze, deconstruct, and scrutinize art. Well-qualified experts acting in good faith—to say nothing of judges and juries—can reach dramatically different conclusions about a work’s meaning. Second, the “purpose and character of the use” factor inherently undermines the value behind artistic dissemination and consumption. My experience as an art history major has taught me that an artwork’s meaning/message is incredibly subjective and individualized. It is constantly diverging and evolving as it leaves the artists’ possession and interacts with the its viewers’ personal experiences, values, and interests. In essence, a particular work's meaning is different for everyone and cannot be properly fastened to one general conception. Therefore, allowing the courts to determine the meaning/message of a work (or limiting its meaning to one static, unilateral conception) would be entirely problematic for both artists and society at large because it would lead to unfounded, un-informed, and wholly arbitrary results.

Should we replace the “purpose and character of the use” factor?

While the “purpose and character of the use” factor is grounded in logical considerations, in practice, it fails to produce logical results. Ultimately, the Supreme Court ruled in favor of Goldsmith, finding that Warhol’s work was not sufficiently transformative to furnish Goldsmith’s photograph with new meaning. By allowing the court to decide the meaning of Warhol’s work, the purpose and character of the use test poses grave consequences on the art world. The ruling emphasizes and legitimizes the importance of originality and the potential harm that can be inflicted on the market value of an original work by unauthorized use. This will likely lead to greater scrutiny of the authenticity of artworks and may impact the market value of works that incorporate pre-existing copyrighted material. It also may impact the way that artists create and distribute their work, as well as how the art market functions. The Supreme Court’s ruling places a greater responsibility on artists to obtain permission or licensing agreements for the use of copyrighted material, which could make it more difficult for emerging artists to gain exposure or create new work that incorporates existing work, as many aspiring artists do not have the resources to obtain these permissions or licenses. Thus, in my opinion, the purpose and character of the use factor should be abolished, and we should not allow judges and juries to unilaterally determine what an artwork represents. However, determining what factor should replace the purpose and character of the use should be a job for the legislature.

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