On May 18, 2023, the Supreme Court, in a 7-2 opinion, affirmed the decision of the United States Court of Appeals for the Second Circuit in favor of photographer Lynn Goldsmith (“Goldsmith”) holding that the “purpose and character” of the particular commercial use by the Andy Warhol Foundation (“AWF”) of Goldsmith’s photograph did not meet the criteria for the “fair use” defense to copyright infringement. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023). The Second Circuit had reversed the decision of the U.S. District Court for the Southern District of New York granting summary judgment in favor of AWF.

The decision was based on a narrow set of circumstances. While Warhol had created a series of pieces featuring Prince based upon Goldsmith’s photograph, the case focused solely on the use of one particular work, “Orange Prince,” used for a special edition of Vanity Fair magazine. The Court expressed “no opinion as to the creation, display, or sale of any of the original Prince Series works.” Id. at 1278. The decision focuses on Warhol’s failure to pay Goldsmith a licensing fee in 2016 for the Vanity Fair piece, not the issue of whether Warhol should have used Goldsmith’s image in the first place. 

Fair use is an affirmative defense against claims of copyright infringement, permitting the unlicensed use of copyrighted-protected works. This exception aims to protect uses of copyrighted works for purposes such as criticism, comment, news reporting and teaching. Understanding the concept of fair use is important both for individuals seeking to use third-party materials and for copyright owners determining how to address the use of their work by others. The Copyright Act, 17 U.S.C. § 107(1) outlines the four factors in assessing whether the use is fair: (1) the purpose and character of the use, such as whether a use is of a commercial or nonprofit educational nature; (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 on the potential market for or value of the copyrighted work. 

Courts and legal scholars have historically had disparate interpretations of how fair use applies to various fact patterns, and the Supreme Court’s ruling does little to alleviate this confusion. However, the decision does uphold established precedents and underscores the importance of fair use within copyright law, while highlighting that fair use requires a case-by-case analysis. Here we look at some other recent court decisions that highlight the fact-specific nature of the fair use analysis. 

Recent Judicial Decisions in Favor of Fair Use

Yang v. Mic Network Inc., Nos. 20-4097-cv(L), 20-4201-cv (XAP), 2022 U.S. App. LEXIS 8195 (2d Cir. Mar. 29, 2022): In Yang, the Second Circuit found that using a screenshot from an article, including part of a photograph, to report on and criticize the article constituted fair use of the photograph. The plaintiff-photographer had sued the defendant for screenshotting a New York Post article entitled “Why I Don’t Date Hot Women Anymore,” which featured a photograph of the author taken by the plaintiff. The defendant used the screenshot of the article for its own piece, which was mostly a compilation of tweets reacting negatively to the original article. The court concluded that all four factors weighed in favor of fair use. The screenshot of the article transformed the copyrighted photograph by identifying the subject of the critique and providing commentary on the article. 

Monsarrat v. Newman, 28 F.4th 314 (1st Cir. 2022): In Monsarrat, the United States Court of Appeals for the First Circuit held that copying a post from one social networking platform to another is fair use. In this case the plaintiff posted the content in a community forum discussion on a Russian-owned social networking platform. After the platform revised its terms of service to comply with Russian censorship laws, the defendant moved the plaintiff’s content from that forum to another social networking platform. The court found that the second and fourth factors, in particular, weighed heavily in favor of fair use. The public post was deemed to be “factual and informational,” and the fact that there was no potential market for the post favored fair use. 

Bell v. Eagle Mt. Saginaw Indep. Sch. Dist., 27 F.4th 313 (5th Cir. 2022): In Bell, the United States Court of Appeals for the Fifth Circuit determined that the use of a motivational passage excerpted from a book on social media posts by a public-school athletics program was fair use. In assessing the first factor, the court considered whether the use of the excerpt was commercial, whether the school acted in good faith and whether the use was transformative. Although the court held that the school’s use was not transformative, the first factor weighed in favor of fair use because the use was noncommercial and done in good faith. While good faith does not excuse copyright infringement, fair use presupposes good faith and fair dealing, and the defendant’s conduct does factor into the fair use determination. See Bell, 27 F.4th at 322 (quoting Fisher v. Dees, 794 F.2d 432, 432 (9th Cir. 1986))(quoting Harper & Row, 105 S. Ct. at 2232)). The school posted the passages with proper attribution and, upon learning of the plaintiff’s concerns, promptly removed the posts and provided assurances that similar incidents would not recur in the future. Here, the court also affirmed the award of attorneys’ fees to deter the plaintiff and other copyright holders from suing public institutions and nonprofit organizations over “de minimis uses.” Id. at 326.

Recent Judicial Decisions Against a Finding of Fair Use

Nat’l Acad. of TV Arts & Scis., Inc. v. Multimedia Sys. Design, Inc., 551 F. Supp. 3d 408 (S.D.N.Y. 2021): In National Academy, the United States District Court for the Southern District of New York held that the use of a modified version of the Emmy statuette in connection with an unrelated awards show commenting on social and political issues is not fair use. The Court awarded the Academy an injunction against Crowdsource the Truth, owned by Multimedia System Design Inc. (“MSDI”), for its use of an image of the Academy’s copyrighted and trademarked Emmy award statuette in their “Crony Awards,” an awards show “spoof” that honored countries that downplayed the dangers of COVID-19. The defendant claimed that its use of the Emmy statuette fell under fair use because it was a parody. “To constitute a parody, a work must be directed, at least in part, at the original, and its ‘commentary [must have] critical bearing on the substance or style of the original.’” See Academy at 423 (quoting Abilene Music, Inc. v. Sony Music Ent., Inc., 320 F. Supp. 2d 84, 91 (S.D.N.Y. 2003)). The court rejected the argument, as the purpose of MSDI’s platform appeared to be spreading conspiracy theories and disinformation, and neither the Emmy statuette nor the Academy were mentioned in the broadcast. Id. The first factor disfavored fair use as the use was not transformative since the main aesthetic elements of the statuettes were the same. The court found the fourth factor also weighed against a finding of fair use. While the potential markets for the Emmy Awards and MSDI’s videos do not overlap, the court determined that the Academy adequately alleged that it suffered actual and reputational harm through MSDI’s association of the Emmy statuette with misinformation about the COVID-19 pandemic. Id. at 425.

Golden v. Michael Grecco Prods., 524 F. Supp. 3d 52 (E.D.N.Y. 2021): In Golden, the United States District Court for the Eastern District of New York concluded that the use of a promotional photograph from a commercial photoshoot in a blog post was not fair use. The plaintiff published a blogpost about rumors of a potential reboot of Xena: Warrior Princess. The blogpost featured a photograph from a 1997 photoshoot of the original television show taken by the defendant-photographer. The defendant had been paid for the photographs and had retained all copyrights to the photographs from the shoot. The court held that the use of the photograph was not transformative; the use of the photograph served the purpose more of an illustrative aid than news reporting; the defendant used the entire, unaltered version of the photograph; and the use negatively affected any potential secondary market for licensing the photograph. 

Midlevelu, Inc. v. ACI Info. Grp., 989 F.3d 120 (11th Cir. 2021), cert. denied 2021 U.S. LEXIS 3559 (U.S., June 28, 2021): In Midlevelu, the United States Court of Appeals for the Eleventh Circuit rejected the fair use claim and held that using online articles to create an index of article summaries and publishing a full-text version of each article did not constitute fair use. The defendant had created a subscription-based index that featured summaries of both licensed and unlicensed content. Each index entry included a browsable, full-text snapshot of the content but did not redirect the user to the original website. The court determined that the use was not transformative, the purpose was commercial and the use took more of the copyrighted work than was necessary to create the index.

Conclusion

Two seemingly similar situations may yield different fair use determinations. Past cases can offer guidance, but they do not establish rigid rules that apply to all scenarios. As technology continues to advance and new forms of copyrightable expression emerge, fair use will remain a dynamic area of law. Lutzker & Lutzker is available to guide copyright owners and potential third-party users in applying the recent SCOTUS decision and other case law to the facts in their specific situation.