FAIR USE

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Issues

Does a work of art that visually resembles its copyrighted source material, but conveys a different meaning, constitute fair use? Is a court permitted to consider meaning when evaluating copyright infringement claims?

This case asks the Supreme Court to determine whether a work of art that visually resembles its source material but transforms its meaning constitutes fair use under copyright law. The Andy Warhol Foundation for the Visual Arts (AWF) argues that several screenprints created by Andy Warhol, which derive from an original photograph by Lynn Goldsmith, are transformative and constitute fair use because they portray a significantly different message than Goldsmith’s original photograph. Goldsmith argues that since her photograph is recognizable in Warhol’s prints and the works share the same purpose, the prints are not fair use but rather infringe her copyright in her photo. The outcome of this case carries implications for copyright holders’ economic incentives, marginalized artists’ commercial prospects, and creative expression.

Questions as Framed for the Court by the Parties

Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).

In 1981, Lynn Goldsmith, a prominent celebrity portrait photographer, took a photograph of the musician Prince. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith at 33. Goldsmith holds a copyright in the photo. Id.

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Google LLC v. Oracle America, Inc.

Issues

Is a software company entitled to copyright protection for its unique programming platform; and, if so, under what conditions does a secondary use of that programming platform to create a new computer program constitute fair use?

This case asks the Supreme Court to determine whether, under the Copyright Act of 1976, software interfaces can receive copyright protections that convey exclusive rights to the software author and, if so, under what conditions a secondary use of that software constitutes fair use. Google argues that no copyright protections should extend to Oracle’s Java SE declaring code under copyright law’s merger doctrine. Even if copyright protection is warranted, Google contends that its use of the Java SE declaring code to create its Android platform constitutes fair use due to the transformative nature of and limited copying in the Android platform. Oracle counters that software interfaces deserve the same copyright protections as other works because of the expressive nature of the software. As such, Oracle asserts that Google’s use of Java SE is not fair use because it harmed Oracle’s market for licensing Java SE. The outcome of this case has heavy implications for the use of programming languages in future technology as well as the open-book industry standard for borrowing computer code to further technological advances.

Questions as Framed for the Court by the Parties

(1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

In 2010, Respondent Oracle America, Inc. (“Oracle”) purchased Sun Microsystems, Inc. (“Sun”), which transferred ownership of the Java programming language to Oracle. Oracle Am., Inc. v. Google LLC (Federal Circuit) at 5.

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