The Aftermath of Warhol v. Goldsmith: Understanding the Fair Use Doctrine Amidst a Generative AI Renaissance
The recent emergence of generative artificial intelligence (“AI”) has sparked controversy in the field of copyright law. This year, many copyright owners––including a group of artists and Getty Images Inc.––have filed lawsuits against various AI developers, alleging copyright infringement.[1] Specifically, these lawsuits each challenge a generative AI model’s unlicensed ingestion of plaintiff’s copyrighted materials.[2] A generative AI model typically trains itself to recognize and mimic patterns by using large datasets with copyrighted works as inputs. [3]. Historically, AI developers have relied on the fair use doctrine to justify these training practices, emphasizing the “highly transformative purpose” of the use.[4] However, in May, the Supreme Court handed down a decision for Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), which interpreted, and seemingly narrowed, the first factor of the fair use doctrine.[5] Many experts predicted the Warhol decision would shine a light on the applicability of fair use to generative AI, but the Court’s fact-specific analysis in this case suggests otherwise.[6]
The roots of the Warhol case date back to 1984––when Vanity Fair featured Prince in its November issue.[7] The respondent, Lynn Goldsmith, licensed her Prince photograph to Vanity Fair to employ as an “artist reference for an illustration” in the musician’s feature, earning her $400.[8] Goldsmith authorized a “one time” only use of her photograph.[9] After obtaining this license, Vanity Fair commissioned Andy Warhol to create a silkscreen of Prince using this photo.[10] The magazine included Warhol’s work in the published spread on Prince.[11] In addition to this original silkscreen, Warhol derived fifteen other works from Goldsmith’s photo, including another silkscreen titled “Orange Prince.”[12] Decades later, the petitioner, Andy Warhol Foundation for the Visual Arts (“AWF”), licensed Condé Nast to publish “Orange Prince” as a tribute to the musician’s life.[13] AWF earned $10,000 from this license.[14] Goldsmith notified AWF that “she believed its use of her photograph infringed her copyright,” prompting AWF to sue the photographer “for a declaratory judgment of noninfringement or, in the alternative, fair use.”[15] The Supreme Court granted Certiorari to assess “whether the first fair use factor . . . weighs in favor of AWF’s recent commercial licensing to Condé Nast.”[16]
In an opinion written by Justice Sotomayor, the Warhol Court affirmed the Second Circuit’s decision and ruled that the first fair use factor favors Goldsmith.[17] The Warhol holding centers on the Court’s description of transformative use in Campbell v. Acuff-Music. 510 U.S. 569, 579 (1994) (ruling that a use is transformative if it “alter[s] the first [work] with new expression, meaning, or message”). According to the majority, courts should take a non-literal approach to interpreting this Campbell definition. Although a secondary work’s new expression “may be relevant” to a showing of transformative use, this element “is not, without more, dispositive of the first factor.”[18] Rather, the first factor focuses on the purpose of the use itself, and “transformativeness” depends on whether the secondary use had a purpose distinct from that of the original use.[19] Specifically, the first factor’s “central” inquiry questions “whether the new work merely ‘supersede[s] the objects’ of the original creation . . . (‘supplanting’ the original), or instead adds something new, with a further purpose or different character.”[20] When the secondary work uses the original work to achieve a purpose substantially similar to that of the original work, then it likely supplants the original work.[21] The majority emphasized that the “transformative use” inquiry considers additional factors, including commercialism.[22] Sotomayor noted two elements that substantially impact a first factor analysis: (1) whether the use is commercial and (2) whether the justification for the use furthers the goals of copyright law. [23] Thus, the overarching rule in Warhol is: “[i]f an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.”[24]
As a policy matter, the majority further emphasized the dangers of broadly interpreting a secondary work’s “transformative value” when conducting a first factor analysis.[25] The Court reiterated the importance of a copyright owner’s exclusive right to prepare derivative works, noting that a broad interpretation of “transformativeness” would consequently restrict this right.[26] Thus, the Court asserted that “the degree of transformation required . . . must go beyond that required to qualify as a derivative.”[27]
Applying the rule to the facts here, the majority held that the licensing of “Orange Prince” and Goldsmith’s photo shared substantially similar purposes in this situation.[28] The Court supported this point by highlighting that “[b]oth are portraits of Prince used in magazines to illustrate the stories about Prince.”[29] Furthermore, both uses were commercial in nature––AWF and Goldsmith each received compensation for licensing their works. [30] As Justice Sotomayor mentioned, commercialism is an element that cuts against a finding of transformativeness under the first factor.[31] Thus, AWF’s use of “Orange Prince” in this case was insufficiently transformative.[32]
From the outset, Warhol appears to be a major triumph for artists and other human copyright owners alike. In fact, many experts believe that this case will weaken the fair use argument for generative AI models. However, in at least one way, this decision may strengthen this defense.[33] By deemphasizing the secondary work’s aesthetics and instead underscoring the purpose of its use, the majority establishes somewhat of a “transformative purpose” standard under the first factor.[34] Therefore, although the level of “distinctiveness and newness” will inevitably vary for each output, this consideration is less important in a post-Warhol world.[35] Generative AI models use copyrighted materials for training purposes; thus, the purpose of the use is fairly “distinct from that of nearly every copyrighted work in history.”[36] However, because the Supreme Court has yet to apply the Warhol analysis, the decision’s impact on the generative AI industry is still largely unknown. Although Warhol narrowed the focus of the first fair use factor, the Court’s analysis is fact-specific and leaves pertinent questions unanswered. The Director of the U.S. Copyright Office even stated that the fair use inquiry primarily remains “up in the air.” [37] Furthermore, as the concurring justices mentioned in Warhol, the majority failed to both address the infringement claim and apply the additional fair use factors.[38] Until the Supreme Court provides such guidance, the validity of infringement claims against AI developers will remain murky.
Footnotes
