Fair use is a common yet complicated defense against copyright infringement. And it can be difficult to predict the outcome. Content creators often creatively transform existing copyrighted material for purposes like commentary, criticism, research, or education. Because such use of copyrighted material is ultimately in furtherance of the overall objective of copyrights, would-be infringers can evoke the fair use defense to avoid liability in certain narrow instances. What is and isn’t covered under fair use is often confusing and involves defining “transformative use” for different situations. This can be complex, albeit interesting due to the people and works involved. A roundup of cases sheds some light on recent developments in this area of copyright.
Dr. Seuss Enterprises, L.P. v. ComicMix, LLC
An unlicensed book titled Oh the Places You’ll Boldly Go! (“Boldly”) drew Dr. Seuss Enterprises to take action in 2016. The book was a mash-up of the popular Dr. Suess work Oh the Places You’ll Go! and science-fiction material from the Star Trek universe.
A trial judge initially ruled that due to the “highly transformative” nature of the work, the mash-up was allowed under fair use. However, on appeal to the Ninth Circuit, Dr. Suess Enterprises prevailed on its copyright infringement claim. ComicMix, LLC, the entity behind Boldly, argued that the work was a parody, i.e. commentary and criticism of Dr. Suess’s original work. The Ninth Circuit rejected this defense finding that Boldly was not a transformative use, but merely a “repackaging” of the Dr. Suess world for commercial gain.
This case drew attention from those in the copyright arena since it helps clarify the Ninth Circuit’s views on protection of mash-ups. While ComicMix argued that the combination of elements from the two distinct creative works was inherently transformative, the Ninth Circuit strongly disagreed, finding that all four factors of the fair use test weighed in favor of Dr. Suess Enterprises. This is a notable decision and content creators in the mash-up space should proceed with caution.
The Andy Warhol Foundation v. Goldsmith
What do Andy Warhol, Prince, and a 1984 issue of Vanity Fair have to do with intellectual property in 2021? A whole lot more than you might expect. These were the subject of a recent ruling by the U.S. Court of Appeals for the Second Circuit that, like the Dr. Suess case above, drew a narrow boundary around transformative use. In this case, the court determined that Warhol’s use of a famous photograph in his artwork did not meet criteria for a fair use defense.
Lynn Goldsmith is a prolific professional photographer known primarily for her work with celebrities and musicians, among other achievements. In 1981, she took a series of portrait photographs of Prince in her studio. Vanity Fair legally used one of these photographs as an artist reference in 1984, and that artist happened to be Andy Warhol. Warhol subsequently made several more works from the photograph without Goldsmith’s knowledge.
After Prince’s passing in 2016, Goldsmith learned about Warhol’s unlicensed use of her work. Soon after, she asserted a copyright claim. The Andy Warhol Foundation contended that the works were not infringement, and the district court agreed. The court reasoned that Warhol’s works constituted transformative use of Goldsmith’s photographs in part due to their immediate recognizability as a ‘Warhol.’ Upon appeal, the Second Circuit reversed the original decision, reasoning that the work did not constitute transformative use. Notably, the opinion included the distinction that if they were to uphold this ruling based on Warhol’s recognizability that it may create a “celebrity-plagiarist privilege.” Like the Dr. Seuss case, this decisions narrows the availability of a fair use defense.
Georgia v. Public.Resource
Public.Resource is a nonprofit advocacy group that focuses on making public domain content accessible to everyone. The group is particularly invested in making United States Federal Government documents accessible, often through digitizing records. Generally speaking, government produced materials are in the public domain. However, Georgia v. Public.Resource brought to light questions surrounding how states should use copyright. The State of Georgia published some state code online, but annotated versions were only available to paying users. Public.Resource spread these annotated – and copyrighted – versions online without permission, which led Georgia to sue them in 2015.
The Eleventh Circuit ruled in favor of Public.Resource, reasoning that the codes were part of state law and therefore could not be copyrighted. The state assembly of Georgia appealed this decision to the Supreme Court. In April 2020, the Court ruled in agreement with the Eleventh Circuit that Georgia does not have copyright over its legal code. The majority opinion held that copyrighting official works of the Georgia legislature could deprive citizens the full knowledge of the laws.
Do these recent rulings change the nature of Fair Use?
Many in the field are looking to these and other relevant rulings to see what can be garnered about the nature of fair use. Unfortunately, as can be seen here, there isn’t a one-size-fits-all approach to determining what is and is not fair use. With factors that must be analyzed on a case-by-case basis, fair use defenses are difficult to assess and content creators should not assume they have a viable defense when using another party’s content. If you’re concerned about infringement, contact Gavin Law Offices today.
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