`
`No. 21-869
`
`
`
`
`
`In the
`Supreme Court of the United States
`
`
`
`
`
`ANDY WARHOL FOUNDATION
`FOR THE VISUAL ARTS, INC.,
`Petitioner,
`v.
`
`LYNN GOLDSMITH AND
`LYNN GOLDSMITH, LTD.,
`Respondents.
`
`------------------------------------------
`ON W R I T O F C E R T IO R A R I T O
`T H E UN I T E D ST A T E S C O U RT OF AP P E A L S
`F O R TH E SE C O N D C I RCU IT
`------------------------------------------
`AMICUS BRIEF OF PHOTOGRAPHERS
`GARY BERNSTEIN AND JULIE DERMANSKY
`IN SUPPORT OF RESPONDENTS
`------------------------------------------
`
`
`
`
`
`
`
`
`David Leichtman
` Counsel of Record
`Leichtman Law PLLC
`228 East 45th Street
`Suite 605
`New York, NY 10017
`(212) 419-5210, Ext. 1
`dleichtman@leichtmanlaw.com
`
`Counsel for Amicus
`
`
`G i b so nM o o r e A pp e lla te S er v i ces , L L C
`2 0 6 E a s t Ca r y Str ee t ♦ Ri c hmo n d, V A 23 2 19
`8 0 4- 2 49 - 77 7 0 ♦ w ww. g ib s o nm o o r e. n et
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page:
`TABLE OF AUTHORITIES ...................................... iii
`INTERESTS OF THE AMICI CURIAE .................... 1
`ARGUMENT .............................................................. 7
`A. The Author’s Exclusive Right To Make
`and Authorize Derivative Works
`Contrasted With The Adoption of the
`Non-Statutory Word “Transformative”
`In Section 107 .................................................. 8
`B. The Fair Use Inquiry Is Concerned With
`Justification,
`Not
`Merely
`“Transformation.” .......................................... 10
`C. AWF’s Argument Removes
`The
`Justification Rationale For Fair Use—
`Campbell Did Not Announce A “New
`Meaning or Message” Test ............................ 14
`D. The Second Circuit Did Not “Prohibit”
`Consideration of New “Meanings and
`Messages,” It Merely Held Them To Be
`Insufficient In This Case ............................... 21
`E. The Usurpation of
`the Derivative
`Market For Visual Artists Like
`Bernstein and Dermansky If AWF’s
`Arguments Are Accepted ............................... 25
`F. AWF’s Proposal Would Exact Costs Most
`Copyright Litigants Cannot Afford ............... 30
`
`
`
`
`
`ii
`
`G. AWF’s First Amendment and Other
`Policy Arguments About The Free Flow
`Of Ideas Are Overstated and Wrong ............ 32
`CONCLUSION ......................................................... 34
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page(s):
`
`Cases:
`American Geophysical Union v. Texaco, Inc.,
`60 F.3d 913 (2d Cir. 1994) .................................. 28
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) ...................................... passim
`Cariou v. Prince,
`714 F.3d 694 (2d Cir.), cert. denied,
`571 U.S. 1018 (2013) .......................... 21, 22, 24, 31
`Dermansky v. Yellowhammer Multimedia, LLC,
`22-CCB-0001 (C.C.B. filed June 16, 2022) ......... 31
`e-Bay v. MercExchange, L.L.C.,
`547 U.S. 388 (2006) ............................................. 10
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) ............................................. 33
`Golan v. Holder,
`565 U.S. 302 (2012) ............................................. 33
`Google LLC v. Oracle Am., Inc.,
`141 S. Ct. 1183 (2021) ........................ 17, 18, 20, 27
`Harper & Row Publishers, Inc. v.
`Nation Enterprises,
`471 U.S. 539 (1985) ...................................... passim
`Salinger v. Colting,
`607 F.3d 68 (2d Cir. 2010) .................................. 10
`Sony Corp. of America v.
`Universal Studios, Inc.,
`464 U.S. 417 (1984) ....................................... 25, 26
`
`
`
`
`
`
`iv
`
`Stewart v. Abend,
`495 U.S. 207 (1990) ................................... 8, 33, 34
`TCA TV Corp. v. McCollum,
`839 F.3d 168 (2d Cir. 2016) .......................... 22, 28
`Statutes:
`17 U.S.C. § 101 ....................................................... 7, 8
`17 U.S.C. § 102 ................................................... 32, 33
`17 U.S.C. § 106 ......................................................... 25
`17 U.S.C. § 106(2) ................................................. 8, 25
`17 U.S.C. § 107 .................................................. passim
`17 U.S.C. § 201(d) ..................................................... 25
`17 U.S.C. § 201(d)(2) ................................................ 25
`17 U.S.C. § 501(b) ..................................................... 25
`17 U.S.C. § 1501 et seq. ............................................ 30
`Constitutional Provisions:
`U.S. Const. amend. I .......................................... 32, 33
`Other Authorities:
`https://dockets.ccb.gov/case/detail/22-CCB-0001 .... 31
`John Doyle, The Governator’s got a new foe –
`Climate Change, THE GLOBE AND MAIL
`(Jan. 16, 2014) https://www.theglobe
`andmail.com/arts/television/the-
`governators-got-a-new-foe-climate-
`change/article16373468/ ......................................... 28
`Picasso, Las Meninas (seguin Velasquez)
` No. 1, 1957 ..................................................... 28, 29
`
`
`
`v
`
`Portrait Hollywood: Gary Bernstein’s
`Classic Celebrity Photographs
` (Woodford Press 1994) ........................................ 20
`S. Rep. No. 116-105 (2019) ....................................... 30
`Toward a Fair Use Standard,
`103 Harv. L. Rev. 1105 (1990) ............................ 10
`Velasquez,
`La Familia de Felipe IV o Las Meninas,
` 1656 ................................................................ 28, 29
`
`
`
`1
`
`INTERESTS OF THE AMICI CURIAE
`Amici curiae Gary Bernstein and Julie Dermansky
`are professional photographers with a history of
`licensing their work for use as derivatives.1
`Gary Bernstein is a professional photographer
`who has, for decades, created photographs for clients,
`among them more than 200 celebrities and Fortune
`500 companies
`including Revlon, Avon, NBC,
`American Express, Cartier, Ford, Nikon, Swatch, HP,
`and Pierre Cardin. Gary has designed numerous
`celebrity marketing campaigns including Elizabeth
`Taylor’s Passion Perfume (for Elizabeth Arden and
`Unilever), Jay Leno (for Frito-Lay), Sophia Loren
`Jewelry (for The Franklin Mint), Joan Collins’
`Perfume (for Parlux Fragrances), Johnny Carson
`Clothing (for HartMarx Corporation), Farrah Fawcett
`(for The American Cancer Society), and Jean-Paul
`Germain (the global “Winners” Campaign which
`included such icons as Rock Hudson and Natalie
`Wood). His still photographs have appeared on the
`covers or pages of major magazines including Vogue,
`Harper’s Bazaar, Esquire, Paris Match, GQ,
`Architectural Digest and Popular Photography. With
`work in the Museum of Modern Art in New York, he
`received a degree in Architecture from Penn State, a
`Masters in Film from Brooks Institute, a Masters in
`Contemporary Art
`from The Smithsonian, the
`Photographic Craftsman Degree
`from The
`
`1 No party or their counsel authored this brief in whole or in part
`or contributed money to fund preparing or submitting this brief.
`All parties have consented to the filing of this brief, as the parties
`agreed to a blanket consent for amicus briefs ten days in
`advance. Neither Mr. Bernstein nor Ms. Dermansky have any
`parent corporation, and no publicly held corporation owns 10%
`or more of their stock.
`
`
`
`2
`
`Professional Photographers of America, and The Gold
`Award from The Advertising Festival of New York
`City.
` Bernstein licenses derivatives of his own works.
`He depends on licensing for his livelihood, and has
`licensed single images for up to $100,000. Among
`other things, later this year, he will be launching a
`series of derivatives as non-fungible tokens (“NFTs”),
`which are anticipated to generate significant revenue.
`If anyone could simply take his photographs, some of
`which are among the most iconic images of the
`celebrities he has photographed, he would be unable
`to earn a living.
`
`Julie Dermansky is a professional commercial
`photographer, a multi-media reporter, and fine artist
`who provides, among other services, journalistic
`photography and videography to her clients. Her
`clients include Bloomberg Businessweek, Showtime,
`The Guardian, Vox, the Atlantic, the Weather
`Channel, NBC, CBS, Mother Jones, NPR, and non-
`profit organizations including the Environmental
`Defense Fund, Greenpeace, Sierra Club, NRDC, the
`ACLU, and the Chicago Field Museum. A large part
`of her work involves documenting the fossil fuel
`industry, environmental
`racism, and extreme
`weather as it relates to climate change. Her
`work brings attention to “fenceline communities”
`(residents who live adjacent to industrial facilities
`that emit toxins), who are disproportionately
`impacted by pollution and increasingly extreme
`weather events that scientists have connected to
`climate change.
`She has amassed one of the largest archives of
`images of the Environmental Justice hot spot between
`
`
`
`3
`
`Baton Rouge and New Orleans lined with numerous
`refineries and petrochemical plants known as “Cancer
`Alley,” which the EPA has identified as including
`minority communities with a much higher risk of
`cancer from air pollution than the rest of the country
`and the impacts of climate change since 2010. Her
`work is driven largely by her personal passion for her
`subject matter, and not by breaking news, although
`both topics are increasingly in the headlines. Her
`work is thus regularly sought by image researchers
`and photo editors because there are very few recent,
`if any, stock photos available from photo aggregators
`such as Getty, AP, and Shutterstock covering the
`same subject matters as her work.
`Creating such work from documenting oil spills,
`eroding coastlines, and the aftermath of destructive
`storms involves great expense, time, and risk. Her
`longtime presence and connection to
`frontline
`communities gives her access, similar to that of beat
`reporters, allowing her an intimacy with her subject
`matters which she has earned over time. An example
`is her work covering the Isle de Jean Charles Tribe,
`which helped Louisiana win the first federal grant to
`relocate a coastal community, which was recently in
`the news again. She often engages owners of boats
`and helicopters and obtains access to otherwise
`inaccessible locations (such as rooftops) to take her
`photographs, which also contributes to what makes
`them rare and scarce.
`To the extent her work is driven by new headlines,
`it is often selected for licensing by major media from
`large pools of available images because her work
`stands out as a result of her artistic eye. Her
`photography has been recognized with a National
`Endowment for the Arts grant, and a grant from the
`
`
`
`4
`
`Magnum Foundation. Her work is in the collections of
`the September 11th Memorial Museum and the
`Louisiana State Museum, and has been the subject of
`solo exhibitions, including at the Ogden Museum in
`New Orleans and
`in numerous other group
`exhibitions.
`In instances where the topics she photographs
`become relevant to later news headlines, her work is
`infringed frequently, as she is often the only source of
`photographs that document certain events and people
`who later become notable, making her photographs
`even more valuable at later points in their copyright
`life, such as the leaders of the environmental
`movement in “Cancer Alley.” She licenses her work,
`and often receives as much as $12,000-$15,000 per
`work. If anyone could simply take her photographs
`and use them by changing them a little or changing
`their context, she would be unable to make a living.
`Below are images from both amici, shown in their
`original state, followed by derivative uses that they
`licensed.
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`Dermansky shot the following photograph after
`Hurricane Sandy hit New Jersey in 2012.
`
`
`This photograph was licensed to Showtime for
`$12,000 and used by it to advertise a documentary
`series called Years of Living Dangerously, released in
`2014 about celebrity activism and climate change.
`Showtime made
`substantial
`changes
`to
`the
`photograph in both coloration and composition:
`darkening the sky behind it, moving the house to the
`background, and significantly enhancing the debris in
`front of the house. Here is what the photograph
`looked like in Showtime’s derivative use:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`6
`
` One of Bernstein’s more iconic photographs is one
`of Elizabeth Taylor, shot for a renowned 1986 press
`release, and which he has licensed over the years in
`the aggregate of hundreds of thousands of dollars.
`
`
`In 2018, he created a series of derivatives of his
`
`own works, for licensing or sale through various
`sources. For example, the image below will be part of
`his NFT collection to be launched later in 2022:
`
`
`
`
`
`7
`
` Under AWF’s proposed new fair use test, neither
`of the undersigned amici would be able to license the
`above works because the potential licensees would
`simply claim: “fair use.”
`ARGUMENT
` AWF and its amici urge this Court to further
`expand the use of and meaning of the word
`“transformative” in the first fair use factor of the
`Copyright Act (the “Act”), even though that word is
`not in the statutory fair use section. Instead, it only
`appears in the definition of derivative works, which
`grants authors the exclusive right to control the
`“recast[ing], transform[ation], or adapt[ation],” of
`their own works. 17 U.S.C. § 101 (definition of
`derivative work). This Court should decline the
`invitation of AWF to expand this non-statutory use of
`the word “transformative,” and further clarify that,
`pursuant to this Court’s decision in Harper & Row
`Publishers, Inc. v. Nation Enterprises, 471 U.S. 539
`(1985), the fourth statutory fair use factor remains
`the most important. Here, as evidenced by Warhol’s
`own surreptitious licensing of his derivative of
`Goldsmith’s photograph, the Warhol works at issue
`clearly usurp the licensing market for Goldsmith’s
`derivative works.
` AWF’s effort to expand the extra-statutory
`“transformative use” doctrine removes it from the
`narrow and limited context in which Justice Souter
`adopted it in Campbell v. Acuff-Rose Music, Inc., 510
`U.S. 569 (1994), to fill in a gap in the preamble of
`Section 107 for parody. AWF’s proposal also divorces
`“transformative use” completely from the concerns of
`the article that Justice Souter borrowed it from,
`
`
`
`8
`
`which focuses on the “justification” rationale for the
`fair use doctrine.
` The Warhol works at issue suffer from what
`Justice Souter called the unjustifiable “drudgery of
`working up something fresh,” which does not come
`close to constituting a justifiable fair use. Campbell,
`at 580. The Warhol works also suffer from the
`distinction made by Justice O’Connor between “a true
`scholar and a chiseler who infringes a work for
`personal profit.” Harper & Row, at 563.
`A. The Author’s Exclusive Right To Make and
`Authorize Derivative Works Contrasted With
`The Adoption of the Non-Statutory Word
`“Transformative” In Section 107.
`Authors hold the exclusive right to make and
`control the authorization and copying of derivative
`works. 17 U.S.C. § 106(2). A “derivative work” is a
`work
`“based upon one or more preexisting
`works, such as a[n]. . . art reproduction, abridgment,
`condensation, or any other form in which a work may
`be recast, transformed, or adapted.” 17 U.S.C. § 101
`(emphasis added).
`By contrast to the definition of a derivative work,
`the fair use portion of the Act, at Section 107, does not
`use the word “transform” or any other variation
`thereof. The focus of Section 107 is on something
`different: the fair commentary and criticism of an
`original work of another, in the interest of public
`debate. It is not a panacea for taking the work of
`another and converting it for the second user’s own
`monetary gain without payment to the original
`author. Stewart v. Abend, 495 U.S. 207, 229 (1990)
`(“When an author produces a work which later
`commands a higher price in the market . . ., the
`
`
`
`9
`
`copyright statute is designed to provide the author
`the power to negotiate for the realized value of the
`work . . . . At heart, petitioners’ true complaint is that
`they will have to pay more for the use of works they
`have employed in creating their own works.”).
`AWF’s argument would require the Court to adopt
`an expansive doctrine of “transformativeness” in a
`manner completely detached from “justification” or
`fairness, which are the hallmarks of the “fair use”
`doctrine.
`Although “transformative use” is not mentioned in
`the preamble or the statutory fair use factors in
`Section 107, in Campbell, this Court first announced
`that an inquiry into whether a use of a copyrighted
`work is “transformative” can sometimes be part of a
`court’s analysis of fair use because parody may be
`a form of criticism, thus fitting within the subject
`matter referenced in Section 107’s preamble. This
`Court defined “transformation” as applying only
`where the infringer “adds something new, with a
`further purpose or different character, altering the
`first with new expression, meaning, or message.” Id.
`at 579. Finding that parody can sometimes, but not
`always, be a form of criticism, this Court remanded
`the Campbell case for a determination of fair use, but
`did not itself decide whether the use at issue was fair.
`Here, AWF argues that its works have altered the
`Goldsmith work by imbuing it with new meaning or
`message, but that the Second Circuit precluded such
`an inquiry. As explained below, that accusation is
`false.
`
`
`
`
`
`10
`
`B. The Fair Use Inquiry Is Concerned With
`Justification, Not Merely “Transformation.”
`The word “transformative” in Campbell emanated
`from then-District Court Judge Leval’s article
`entitled Toward a Fair Use Standard, 103 Harv. L.
`Rev. 1105 (1990). The article was Judge Leval’s
`response to being reversed twice by the Second
`Circuit in cases where he had used the fair use
`doctrine to deny liability because of the lack of
`discretion at the time to deny injunctive relief in
`copyright cases where he believed important socially
`beneficial information would not reach the public if he
`issued an injunction prohibiting publication.
`Judge Leval’s main concern in the article was thus
`about the presumption of irreparable harm afforded
`to copyright owners upon a finding of infringement.
`That lack of discretion is no longer relevant after this
`Court’s decision in e-Bay v. MercExchange, L.L.C.,
`547 U.S. 388 (2006), where this Court announced that
`injunctions should not be granted automatically upon
`a finding of infringement in patent cases, and which
`since has been applied by the lower courts in
`copyright cases. See, e.g., Salinger v. Colting, 607
`F.3d 68 (2d Cir. 2010).
` But without eBay as a guide, in 1990 Judge Leval
`was bound by a presumption of irreparable harm, and
`his efforts to use fair use to avoid that consequence
`was twice rebuffed by the Second Circuit. In that
`light, Judge Leval’s proposal in the article did not
`merely adopt a “transformative use” test, but he
`advocated for the use of “transformation” as one of
`several tools for reaching the more important and
`fundamental issue of whether the infringer had a fair
`justification for what it took:
`
`
`
`11
`
`Factor One’s direction that we “consider[]... the
`purpose and character of the use” raises the
`question of justification. Does the use fulfill the
`objective of copyright
`law
`to stimulate
`creativity
`for public
`illumination? This
`question is vitally important to the fair use
`inquiry, and lies at the heart of the fair user’s
`case….
`In analyzing a fair use defense, it is not
`sufficient simply to conclude whether or not
`justification exists. The question remains how
`powerful, or persuasive, is the justification,
`because the court must weigh the strength of
`the secondary user’s
`justification against
`factors favoring the copyright owner.
`I believe the answer to the question of
`justification turns primarily on whether, and
`to what extent,
`the challenged use
`is
`transformative. The use must be productive
`and must employ the quoted matter in a
`different manner or for a different purpose
`from the original. A quotation of copyrighted
`material that merely repackages or republishes
`the original is unlikely to pass the test; in
`Justice Story’s words,
`it would merely
`“supersede the objects” of the original. If, on the
`other hand, the secondary use adds value to the
`original– if the quoted matter is used as raw
`material, transformed in the creation of new
`information, new aesthetics, new insights
`and understandings— this is the very type of
`activity that the fair use doctrine intends to
`protect for the enrichment of society.
`
`
`
`12
`
`Transformative uses may include criticizing
`the quoted work, exposing the character of the
`original author, proving a fact, or summarizing
`an idea argued in the original in order to
`defend or rebut it. They also may include
`parody, symbolism, aesthetic declarations, and
`innumerable other uses.
`Leval, at 1111 (emphasis added).
` Variants of the word “transform” appear twenty-
`three times in Judge Leval’s article, while variants of
`the far more important word to his proposal,
`“justification,” appears more than twice as much,
`fifty-seven times. The question is thus not merely
`whether the original work has been transformed, but
`whether the infringer is justified in using it as “raw
`material,” and if so, whether the infringer took too
`much. The bona fides of the justification can then be
`weighed in part– in Judge Leval’s view– based on the
`degree of transformation. But the inquiry begins and
`ends with justification.2
`In Campbell, Justice Souter observed that even
`though parody is not expressly contained within the
`
`
`2 Thus, Judge Leval’s main thesis was that injunctions ought not
`to be freely given in cases of infringement where the fair use
`question was close. Leval, at 1132 (in the “vast majority of cases,
`[an injunctive] remedy is justified because most infringements
`are simple piracy,” but such cases are “worlds apart from many
`of those raising reasonable contentions of fair use” where “there
`may be a strong public interest in the publication of the
`secondary work [and] the copyright owner’s interest may be
`adequately protected by an award of damages for whatever
`infringement is found.”). See also id., at 1131 n. 114 (“I
`confess . . . with hindsight, I suspect my belief that the book
`should not be enjoined made me too disposed to find fair use
`where some of the quotations had little fair use justification.”).
`
`
`
`13
`
`preamble to Section 107, which describes the types of
`works that are eligible for the application of the “fair
`use” defense, parody is akin to the other uses listed in
`the preamble such as criticism and commentary.
`Therefore, in some cases, parody might meet this
`“justification” rationale. Campbell, 510 U.S. at 579-
`81. However, in adopting the “transformative use”
`phraseology from Judge Leval’s article in Campbell,
`Justice Souter warned the lower courts that the kind
`of lazy appropriation employed by Warhol in this case
`does not meet the test.
` Instead, to
`invoke
`“transformativeness,” it is necessary to elucidate a
`significant
`justification
`for the secondary use,
`grounded in some comment on the original work. See
`id., at 580 (“If, on the contrary, the commentary has
`no critical bearing on the substance or style of the
`original composition, which the alleged infringer
`merely uses to get attention or to avoid the drudgery
`in working up something fresh, the claim to fairness
`in borrowing
`from another’s work diminishes
`accordingly (if it does not vanish), and other factors,
`like the extent of its commerciality, loom larger.”).
`(Emphasis added).
`Justice O’Connor had made the same point nearly
`a decade earlier in Harper & Row: “[t]he crux of the
`profit/nonprofit distinction is not whether the sole
`motive of the [secondary] use is monetary gain but
`whether the user stands to profit from exploitation of
`the
`copyrighted material without paying
`the
`customary price.” Harper & Row, 471 U.S. at 562
`(emphasis added). Where there is an active licensing
`market, as there is here, according to Justice
`O’Connor, fair use “distinguishes between ‘a true
`scholar and a chiseler who infringes a work for
`personal profit.’” Id. at 563. (citations omitted).
`
`
`
`14
`
`Warhol’s works, which make no commentary or
`criticism whatsoever of Goldsmith’s work, fall into the
`latter category.
`C. AWF’s Argument Removes The Justification
`Rationale For Fair Use— Campbell Did Not
`Announce A “New Meaning or Message” Test
`AWF’s argument is not aligned with Judge Leval’s
`original use of the word “transformation” as a tool to
`examine “justification” and the reason this Court
`adopted the phrase in Campbell. The bare “new
`meaning-or-message” test advocated by AWF and its
`amici overlooks the context in which that phrase was
`first used. That sentence in Campbell does not, as
`AWF claims, announce a “test” at all, and Warhol’s
`characterization is not even a complete statement of
`the sentence in Campbell from which its proposed
`“test” emanates.
`Judge Leval’s focus in 1990 on justification— and
`transformativeness only as a means of measuring
`justification— makes perfect sense in examining
`whether an infringer’s actions were fair. But
`analyzing whether something is transformed, in the
`absence of any claim of fairness or justification, is an
`empty exercise. Yet, that is just what the proposed
`“new meaning or message” test— divorced from any
`proffered reason explaining “why this work,” and no
`limitations on how much can be taken— would
`encourage.
`The question is not merely whether the original
`work has been transformed, but whether the scope of
`the infringer’s unauthorized use is justified. While
`justification can be weighed based on the degree of
`transformation, the inquiry must start with an actual
`justification setting out the need to use the original.
`
`
`
`15
`
`justification for
`But here, what was Warhol’s
`appropriating Goldsmith’s photograph— as opposed
`to licensing it— or using some other photograph of
`Prince other than a commercial motivation? The
`answer is simple: none.
`Warhol did nothing like any of the examples either
`Judge Leval or Justice Souter provided in the
`quotations cited above to comment on or criticize the
`Goldsmith photograph. In AWF’s reasoning, the
`Goldsmith work is actually irrelevant to AWF’s
`claimed new “meaning or message,” since his
`purported desire to depict celebrities as being
`“dehumanized” has nothing to do whatsoever with
`Goldsmith’s photograph.
`Importantly, as explained in Campbell, not every
`use that is merely different in purpose, message or
`meaning
`from
`the
`original qualifies as a
`transformative use; rather, such secondary uses
`require a significant justification for the portion of the
`work taken. AWF does not offer a single justification
`for why Goldsmith’s photograph— as opposed to any
`other photograph of Prince or some other celebrity—
`was necessary for Warhol to make his purported point
`about the “dehumanization” of celebrities.
` AWF also mischaracterizes Campbell repeatedly–
`the Court never said the parody at issue there was in
`fact a fair use– it merely remanded the case for
`further proceedings in light of its decision that parody
`“may” constitute a fair use because parody is akin to
`the kind of criticism Congress intended in the
`preamble of Section 107. Campbell, at 578 (fair use
`analysis must be “guided by the examples given in the
`preamble.”).
`
`
`
`16
`
` So, how should the justification requirement apply
`in “appropriation art” cases, such as here, as
`contrasted with the example of parody in the
`Campbell case? What Warhol did does not fall into
`any of the categories in the preamble. And Justice
`Souter partly answered this question already,
`explaining that it is about line drawing— “how much
`is too much” requires an inquiry into the specific
`“justification” offered, and the extent to which the
`copy supplants the market for the original. That is
`why Campbell was remanded, so that inquiry could
`take place in the trial court:
`The fact that parody can claim legitimacy for
`some appropriation does not, of course, tell
`either parodist or judge much about where to
`draw the line. Like a book review quoting the
`copyrighted material criticized, parody may or
`may not be fair use, and petitioner’s suggestion
`that any parodic use is presumptively fair has
`no more justification in law or fact than the
`equally hopeful claim that any use for news
`reporting should be presumed fair.
`.
`.
`.
`Accordingly, parody, like any other use, has to
`work its way through the relevant factors, and
`be judged case by case, in light of the ends of
`the copyright law.
`Id., at 581.
`Here, AWF makes no justification for Warhol’s use
`of Goldsmith’s photograph. During Warhol’s lifetime,
`he never explained why he used Goldsmith’s
`photograph. (Goldsmith Br. at 11, “the record is silent
`on Warhol’s ensuing creation” of the works at issue,
`citing J.A.307). Nor does AWF, in its brief, offer any
`contemporaneous rationale. Instead, it offers only a
`
`
`
`17
`
`post-hoc argument that Warhol’s works have a
`different meaning or message than Goldsmith’s work.
`But that argument does not meet the justification
`rationale behind Campbell’s use of the word
`“transformative.”
`Warhol could have taken his own photo of Prince,
`or he could have licensed one from a photo agency.
`What he doesn’t have is any justification whatsoever
`for using Goldsmith’s photograph and usurping her
`derivative market. Indeed, for Warhol to make his
`purported point about celebrities— why pick Prince
`at all as opposed to some other celebrity?
`It is apparent that the main reason why he used
`it, surreptitiously, was because he was given access to
`it as a result of a licensed use by Goldsmith to Vanity
`Fair. (J.A.307; 191). Ironically, Warhol, in turn, later
`licensed one of his Goldsmith-derived images to
`another publication— which
`is how Goldsmith
`learned of the infringement. (J.A.360). For that later
`use, Goldsmith was paid nothing, and, adding insult
`to injury, received no credit. (Goldsmith Br. at 16-17).
`Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183,
`1203
`(2021), which Justice Breyer said was
`specifically limited to the “functional context of
`computer programs,” does not assist AWF’s position.3
`There, the Court allowed Google to copy Oracle’s
`declaring computer code
`for
`the purpose of
`“create[ing] new products,” but it was not a command
`that creating a silk screen or other work of visual art
`from a photograph can be excused simply because the
`
`
`3 See also id., at 1208 (“the fact that computer programs are
`primarily functional makes it difficult to apply traditional
`copyright concepts.”).
`
`
`
`18
`
`user claims he had a different “meaning and message”
`than the original photographer.
`AWF’s argument again misses the “justification”
`aspect of the Google decision; Justice Breyer was
`careful to qualify the Court’s decision when he wrote
`that Google only took Oracle’s code “insofar as
`needed.” Google, at 1203.
`AWF, on the other hand, does not think that any
`amount of taking is too much. It claims incorrectly
`that this Court: “has thus established that the
`transformativeness inquiry focuses on what a follow-
`on work means, not how much of the original is
`discernable.” (AWF Br. at 30). That is categorically
`false— this Court has never said any such thing.
`Instead, the inquiry is whether the copyist can justify
`how much it took and why. Transformation is only
`one part of the examination of the infringer’s claimed
`justification.
`AWF’s argument in this case neither justifies its
`claim that Warhol changed the “meaning” of
`Goldsmith’s work, nor that Warhol only took as much
`as he needed to make his supposedly altered
`“message.”
` While it tries to rationalize that
`Goldsmith’s work was for the purpose of showing
`Prince as a “vulnerable person” while Warhol sought
`to comment on society’s tendency to “dehumanize
`those it elevates to celebrity” (AWF Br. at 33), that
`false distinction fails to explain why Warhol needed
`Goldsmith’s photo to achieve his aim, let alone why he
`needed nearly all of Goldsmith’s photo to do so.
`Indeed, at pages 16-17 of its brief, AWF shows some
`other photographs of Prince from which he could have
`borrowed for his purported purpose— but offers no
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