Despite the title of this post, I am not a Shakespeare fan; far from it. My only interest in him is in the wonderful derivative works he inspired, such as Hector Berlioz’s opéra comique Beatrice and Benedict, and other derivative works based on Romeo and Juliet, such as Berlioz’s dramatic symphony Roméo et Juliette. Shakespeare also inspired Prokofiev’s ballet Romeo and Juliet and Felix Mendelssohn’s Overture to a Midsummer Night’s Dream. These last two works can’t be considered derivative works in the copyright sense because they don’t incorporate any of Shakespeare’s text, any more than Modest Mussorgsky’s Pictures at an Exhibition can be considered a derivative work of the exhibition of works by architect and painter Viktor Hartmann put on at the Imperial Academy of Arts in Saint Petersburg that Mussorgksy takes us on a musical tour of. Richard Strauss’ Don Quixote is another example of a musical work inspired by another art form (there a novel), but which is not a derivative work because it does not contain any expressive material from the original. Artists have always inspired other artists and may it remain so forever, without copyright law interfering.
The right to prepare derivative works was at the heart of the United States Supreme Court’s 18 May 2023 opinion in The Andy Warhol Foundation v. Goldsmith. Warhol had, under license from Vanity Fair, created an authorized derivative work of Lynn Goldsmith’s photograph of the Artist Formerly Known as Prince, for a magazine article about Prince. The license was for a one-time use only. After Prince (and Warhol’s) death, another magazine licensed a different colored version of Warhol’s adaptation of Goldsmith’s work, but without a license from her. The Foundation then sued Goldsmith for a declaratory judgment that its use was a fair use, and therefore not infringing. The trial court ruled in the Foundation’s favor, but the court of appeals reversed, ruling in Goldsmith’s favor.
“Is there any future guidance in the opinion about other fair use disputes? Yes, but not in the majority opinion.”
The Supreme Court agreed with the court of appeals, but on a very truncated review of just the first of the four factors, the nature and purpose of the use. This truncated review renders the opinion of limited future value, a conclusion fortified by the many references in the opinion to it being narrow. But the case isn’t entirely much ado about nothing. The Court rejected, authoritatively, the Foundation’s argument that transformativeness can be found in the derivative author’s subjective intent. The Court also showed solicitude for the original author’s right to authorize third party derivative works. In the end, though, the case came down to a conclusion, factual or not, that Warhol simply hadn’t changed enough of Goldsmith’s work, at least in the context of an unlicensed use for the same market. Since the Court left open the possibility that the same Warhol work might be fair if displayed in a museum, one does wonder why the Court took the case, since denying certiorari would have had the same result.
Future guidance for fair use disputes
Is there any future guidance in the opinion about other fair use disputes, general guidance aside from a judgment that in this case Warhol didn’t change enough to escape the clutches of the right to prepare derivative works? Yes, but not in the majority opinion, but rather in Justice Gorsuch’s concurring opinion for himself and Justice Jackson. The central argument made by the Foundation was that the first factor’s transformative standard could be met by a subjective different purpose. The majority rejected this, relying on the Second Circuit’s analysis. Justice Gorsuch offered more:
Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work. Instead, the first statutory fair-use factor instructs courts to focus on “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1) (emphases added). By its terms, the law trains our attention on the particular use under challenge. And it asks us to assess whether the purpose and character of that use is different from (and thus complements) or is the same as (and thus substitutes for) a copyrighted work. It’s a comparatively modest inquiry focused on how and for what reason a person is using a copyrighted work in the world, not on the moods of any artist or the aesthetic quality of any creation.
This makes perfect sense from a practical, evidentiary angle. Allowing subjective intentions to prevail would in cases such as Warhol’s be impossible since he said nothing about his purpose. Silence is just silence. In other cases, such as the appropriation artist Richard Prince, his purported purposes are many and contradictory, which is unhelpful to bench and jury trials alike. In the future then, fair use cases, at least involving appropriation art, will be simpler, with fewer experts waxing philosophically about deep subjective meaning, and the trier of fact simply comparing the objective appearance of the works. That’s a blessing.
Featured image via Unsplash (public domain)