No. 21-869
`
`IN THE
`Supreme Court of the United States
`
`
`
`ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS,
`INC.,
`
`v.
`
`LYNN GOLDSMITH, ET AL.,
`
`Petitioner,
`
`Respondents.
`
`On Writ of Certiorari to the United States Court of
`Appeals for the Second Circuit
`
`
`
`
`
`
`
`
`
`
`
`
`BRIEF OF SENATOR MARSHA BLACKBURN AS
`AMICUS CURIAE SUPPORTING RESPONDENTS
`
`
`
`
`
`
`
`
`
`
`Thomas M. Johnson, Jr.
` Counsel of Record
`William K. Lane III
`Krystal B. Swendsboe
`Spencer C. Brooks
`Corey Hauser
`WILEY REIN LLP
`2050 M Street, NW
`Washington, DC 20036
`(202) 719-7000
`tmjohnson@wiley.law
`
`Counsel for Amicus Curiae
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS,
`INC.,
`
`v.
`
`LYNN GOLDSMITH, ET AL.,
`
`Petitioner,
`
`Respondents.
`
`On Writ of Certiorari to the United States Court of
`Appeals for the Second Circuit
`
`
`
`
`
`
`
`
`
`
`
`
`BRIEF OF SENATOR MARSHA BLACKBURN AS
`AMICUS CURIAE SUPPORTING RESPONDENTS
`
`
`
`
`
`
`
`
`
`
`Thomas M. Johnson, Jr.
` Counsel of Record
`William K. Lane III
`Krystal B. Swendsboe
`Spencer C. Brooks
`Corey Hauser
`WILEY REIN LLP
`2050 M Street, NW
`Washington, DC 20036
`(202) 719-7000
`tmjohnson@wiley.law
`
`Counsel for Amicus Curiae
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`
`
`Page
`
`INTEREST OF AMICUS CURIAE ............................ 1
`
`
`SUMMARY OF ARGUMENT ..................................... 2
`
`ARGUMENT ............................................................... 7
`
`I.
`
`Through The Copyright Act, Congress
`Intended To Incentivize And Protect Original
`Work, In Keeping With The Founders’ Design.
` ........................................................................... 7
`
`A.
`
`B.
`
`C.
`
`Throughout American History,
`Copyright Law Was Crafted To Protect
`Original Creative Works. ...................... 7
`
`The Copyright Act’s Text And Structure
`Include Broad Protection Against Use
`Of Copyrighted Material In Derivative
`Works. .................................................. 11
`
`The Copyright Act’s Legislative History
`Confirms Congress’s Intent To
`Incentivize And Protect Original Work.
` .............................................................. 17
`
`II.
`
`The Second Circuit’s Application Of The
`Copyright Act Properly Protects Creators Of
`Original Work. ................................................ 24
`
`CONCLUSION .......................................................... 28
`
`
`
`
`
`
`
`
`
`
` ii
`
`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) ...................................... passim
`
`Cent. Bank, N.A. v. First Interstate
`Bank, N.A.,
`511 U.S. 164 (1994) .............................................. 12
`
`Estate of Cowart v. Nicklos Drilling Co.,
`505 U.S. 469 (1992) .............................................. 12
`
`Dolan v. U.S. Postal Serv.,
`546 U.S. 481 (2006) .............................................. 14
`
`Emerson v. Davies,
`8 F. Cas. 615 (C.C.D. Mass. 1845) ....................... 11
`
`Folsom v. Marsh,
`9 F.Cas. 342 (CC Mass. 1841) ................... 5, 10, 15
`
`Google LLC v. Oracle Am., Inc.,
`141 S. Ct. 1183 (2021) .......................................... 15
`
`Harper & Row Publishers, Inc. v.
`Nation Enters.,
`471 U.S. 539 (1985) ...................................... passim
`
`New Prime Inc. v. Oliveira,
`139 S. Ct. 532 (2019) ............................................ 23
`
`Sony Corp. of Am. v. Universal City
`Studios, Inc.,
`464 U.S. 417 (1984) .......................................... 3, 13
`
`
`
`
`
`iii
`
`Star Athletica, L.L.C. v. Varsity
`Brands, Inc.,
`137 S. Ct. 1002 (2017) .......................................... 12
`
`State Farm Fire & Cas. Co. v. U. S. ex
`rel. Rigsby,
`580 U.S. 26 (2016) ................................................ 17
`
`Story v. Holcombe,
`23 F. Cas. 171 (C.C.D. Ohio 1847) ...................... 10
`
`Twentieth Century Music Corp. v.
`Aiken,
`422 U.S. 151 (1975) ................................................ 3
`
`Washington State Dep’t of Soc. &
`Health Servs. v. Guardianship Est.
`of Keffeler,
`537 U.S. 371 (2003) .............................................. 14
`
`Constitutional Provisions and Statutes
`
`U.S. Const. art. I, § 8, cl. 8 .................................. 1, 3, 7
`
`17 U.S.C. § 101 ...................................................... 3, 13
`
`17 U.S.C. § 106 ...................................................... 3, 13
`
`17 U.S.C. § 107 .......................................... 4, 13, 15, 16
`
`Copyright Act of 1790, Pub. L. No. 1-15,
`1 Stat. 124 .............................................................. 9
`
`Copyright Act of 1976, 17 U.S.C. §§ 101-
`1332 ........................................................................ 3
`
`
`Statute of Anne, 8 Anne, c. 19 (1710) ......................... 7
`
`
`
`Other Authorities
`
`iv
`
`H.R. REP. NO. 94-1476 (1975) ........................... passim
`
`S. REP. NO. 94-473 (1975) .......................... 5, 12, 18, 19
`
`Comments from Bart Herbison, Exec.
`Dir. Nashville Songwriters Ass’n
`Int’l on “Review of ASCAP and BMI
`Consent Decrees,” U.S. Dep’t of
`Justice (Aug. 5, 2014),
`https://www.justice.gov/sites/default/
`files/atr/legacy/2014/08/13/307686.pd
`f ............................................................................. 27
`
`Copyright Law Revision: Report of the
`Register of Copyrights on the
`General Revision of the U.S.
`Copyright Law, 87th Cong., 1st Sess.
`(H.R. Judiciary Comm. Print 1961) ............. 20, 21
`
`Copyright Timeline: A History of
`Copyright in the United States,
`ASS’N OF RSCH. LIBRS.,
`https://www.arl.org/copyright-
`timeline/ ................................................................. 8
`
`THE FEDERALIST NO. 43 (James
`Madison) ............................................................. 3, 8
`
`James Madison, Madison Debates
`AVALON PROJECT (Aug. 18, 1787) .......................... 8
`
`
`
`
`
`v
`
`Marcus IV, Answers to Mr. Mason’s
`Objections to the New Constitution,
`Recommended by the late
`Convention at Philadelphia,
`CONSOURCE (Mar. 14, 1788) .................................. 8
`
`Nate Rau, Nashville’s Musical Middle
`Class Collapses, THE TENNESSEAN
`(Jan. 28, 2015),
`https://www.tennessean.com/story/e
`ntertainment/music/2015/01/04/nash
`ville-musical-middle-class-collapses-
`new-dylans/21236245/ ......................................... 27
`
`Annie Reuter, Evolution of The
`Nashville Songwriter: From Solo
`Writes To Songwriting Apps,
`FORBES (May 16, 2020),
`https://www.forbes.com/sites/anniere
`uter/2020/05/16/evolution-of-the-
`nashville-songwriter-from-solo-
`writes-to-songwriting-
`apps/?sh=21d028a745a3 ................................ 26, 27
`
`Robert Stoner & Jéssica Dutra,
`Copyright Industries in the U.S.
`Economy: The 2020 Report, Int’l
`Intellectual Prop. Alliance,
`https://www.iipa.org/files/uploads/20
`20/12/2020-IIPA-Report-FINAL-
`web.pdf ................................................................... 2
`
`
`
`
`
`vi
`
`Paul Williams, President and
`Chairman, Am. Soc’y of Composers,
`Authors and Publishers (ASCAP),
`Keynote Address at the CISAC
`World Creators Summit (June 5,
`2013),
`https://www.ascap.com/playback/201
`3/06/action/uncertainty_copyright_a
`nd_courage ..................................................... 27, 28
`
`
`
`
`
`
`
`
`
`INTEREST OF AMICUS CURIAE 1
`
`Amicus Senator Marsha Blackburn is a member of
`the United States Senate who is charged with the
`constitutional authority “[t]o promote the Progress of
`Science and useful Arts, by securing for limited Times
`to Authors and Inventors the exclusive Right to their
`respective Writings and Discoveries.” U.S. Const. art.
`I, § 8, cl. 8. From its very first sessions, Congress has
`enacted statutes to protect the original creations of
`copyright owners, including the Copyright Act of
`1976, as amended, which currently serves as the
`primary basis for copyright protection in the United
`States.
`
`Senator Blackburn has a strong interest in
`ensuring that the Copyright Act is interpreted in
`keeping with Congress’s intent—which in turn
`reflects the vision of the Founders—to preserve the
`economic incentive for creators to make original
`works of artistic genius. Strong copyright protections
`have provided the legal environment under which
`American musicians, authors, artists, photographers,
`and other content creators have flourished for
`centuries. The music, art, and other creative
`industries in turn create millions of American jobs
`and add $1.5 trillion in economic value for Americans
`
`
`
`1 No party’s counsel authored this brief in whole or in part,
`and no person or entity, other than amicus or her counsel, made
`a monetary contribution to fund the brief’s preparation or
`submission. All parties in this case have consented to amicus’s
`filing of this brief.
`
`
`
`
`2
`
`in 2019 alone.2 Petitioner Andy Warhol Foundation
`for the Visual Arts, Inc.’s (“Petitioner”) proposed test,
`which would dissolve copyright protections whenever
`a copycat artist subjectively intended to impart a new
`meaning or message to prior protected work, would
`frustrate Congressional
`intent,
`upend
`the
`longstanding legal framework for copyrights, and
`jeopardize the vibrant media and entertainment
`sector of the American economy that depend on strong
`copyright and licensing protections.
`
`Senator Blackburn is a United States Senator for
`Tennessee and is, among other assignments, a
`Member of the U.S. Senate Judiciary Committee and
`its Subcommittee on Intellectual Property. Senator
`Blackburn has also served as the Executive Director
`of the Tennessee Film, Entertainment, and Music
`Commission, and she co-sponsored the Support the
`Copyright Alternative in Small-Claims Enforcement
`(CASE) Act of 2019 (a proposal that was included as
`part of an omnibus COVID-19 Relief Bill and signed
`into law in December 2020), a landmark copyright
`enactment designed to create an easier and more
`affordable way for small creators to address copyright
`infringement.
`
`SUMMARY OF ARGUMENT
`
`law exists to
`its heart, U.S. copyright
`At
`incentivize the creation of original works of art by
`
`
`
`2 Robert Stoner & Jéssica Dutra, Copyright Industries in the
`U.S. Economy: The 2020 Report, Int’l Intellectual Prop. Alliance,
`https://www.iipa.org/files/uploads/2020/12/2020-IIPA-Report-
`FINAL-web.pdf.
`
`
`
`
`3
`
`providing artists with a time-limited exclusive right
`to benefit financially from their efforts. As this Court
`has noted, copyrights provide a “fair return for an
`‘author’s’ creative labor,” with the “ultimate aim . . .
`to stimulate artistic creativity for the general public
`good.” Twentieth Century Music Corp. v. Aiken, 422
`U.S. 151, 156 (1975); see also Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417, 450 (1984)
`(“The purpose of copyright is to create incentives for
`creative effort.”).
` These benefits of copyright
`protection were so well established at the Founding
`that it was “solemnly adjudged . . . to be a right of
`common law,” and the authors of the Federalist
`predicted that the “utility” of Congress’s power to
`protect copyrights “will scarcely be questioned.” THE
`FEDERALIST NO. 43 (James Madison); see also U.S.
`Const. art. 1, § 8, cl. 8.
`
`Pursuant to the Copyright Clause, Congress has
`protected copyrights from as early as 1790, and courts
`subsequently developed common law to establish the
`parameters of those rights. Congress enacted the
`Copyright Act of 1976, 17 U.S.C. §§ 101-1332, to
`codify the common-law principles that had developed
`since the Founding, under which “every commercial
`use of copyrighted material is presumptively an
`unfair exploitation of the monopoly privilege that
`belongs to the owner of the copyright.” Sony, 464 U.S.
`at 451.
`
`The Act provides broad protection for artists to
`enjoy an exclusive right for a period of years to any
`derivative use of their original creations—such as
`film or stage adaptions of a novel or music
`distribution rights. See 17 U.S.C. §§ 101, 106. Artists
`
`
`
`
`4
`
`could also consent to the use of their creations, and
`the Act codified a limited common-law “fair use”
`exception to copyright protection that would permit
`certain uses where the creator’s consent could be
`presumed. See Harper & Row Publishers, Inc. v.
`Nation Enterprises, 471 U.S. 539, 549 (1985).
`
`Specifically, Congress envisioned “fair use” as a
`holistic, case-specific
`inquiry
`into whether a
`secondary artist had made use of a prior protected
`work in a new context for an unrelated end. Congress
`cited as paradigmatic examples the use of a work of
`art in teaching materials, scholarly criticism, or news
`reporting. See 17 U.S.C. § 107. Congress also made
`clear the
`importance of evaluating whether a
`derivative work competed in the same market as the
`original. Congress asked courts to consider, for
`example, whether the “purpose and character” of a
`derivative use “is of a commercial nature or is for
`nonprofit educational purposes,” and “the effect of the
`use upon the potential market for or value of the
`copyrighted work.” Id. § 107(1), (4). Indeed, the Act’s
`legislative history makes clear that this focus on the
`potential commercial harm to artists of copycat works
`was critical to the Act’s passage. See infra pp. 21–24;
`see also Harper & Row, 471 U.S. at 566 (describing
`effect on the market as “the single most important
`element of fair use”).
`
`While copyright law thus prohibits some artists
`from making unauthorized use of another’s work,
`Congress viewed that result as promoting free speech,
`not infringing it. Indeed, this Court has described
`copyright protection as
`“the engine of
`free
`expression,” as it supplies an “economic incentive to
`
`
`
`
`5
`
`create and disseminate ideas.” Harper & Row, 471
`U.S. at 558. Congress’s context-sensitive test for fair
`use also promotes free expression, because it protects
`only those “transformative” uses that “provide social
`benefit, by shedding light on an earlier work, and, in
`the process, creating a new one.” Campbell v. Acuff-
`Rose Music, Inc., 510 U.S. 569, 579 (1994). Fair use,
`however, can never extend so far as to protect
`identical or near-identical facsimiles that “supersede
`the use of the original,” Harper & Row, 471 U.S. at
`550 (citation omitted), or that serve as a market
`“substitute” for a copyrighted work, Folsom v.
`Marsh, 9 F. Cas. 342, 344–45 (C.C.D. Mass. 1841);
`accord, S. REP. NO. 94–473, at 65 (1975).
`
`By contrast, Petitioner puts forth a purportedly
`objective test that can apparently be satisfied through
`testimony about either artist’s subjective intent. Pet.
`Br. at 20, 45, 48. But Petitioner’s suggestion that any
`derivative work that “modifies the meaning or
`message” of an original creation constitutes fair use
`(Pet. Br. at 29) would undermine Congress’s carefully
`calibrated regime for promoting and protecting
`artistic expression.
` Congress nowhere enacted
`Petitioner’s “meaning or message” test in the text of
`the Copyright Act. To the contrary, the “purpose and
`character” test adopted by Congress requires an
`objective inquiry into whether an artist has made
`novel use of an original work for a different purpose
`(such as education). And Congress specifically
`pointed to market substitutability as a strong
`indication that two works share the same “purpose
`and character,” meaning commercial sale of the
`derivative work would be unfair. A “meaning or
`
`message” test, by contrast, would turn U.S. copyright
`
`
`
`6
`
`law on its head, protecting pirates and plagiarizers
`whenever they could plausibly attribute a new
`meaning to a follow-on work. Petitioner’s test would
`also entangle courts in making difficult aesthetic
`judgments about whether two different artistic works
`convey the same meaning or message. Courts are not
`art critics, and even if they were, the exclusive focus
`on aesthetic intent bears little relationship to the
`critical question of whether one artist is depriving
`another of the fruits of an original creation.
`
`Honoring Congressional intent and faithfully
`applying the statutory fair-use factors protects the
`creative efforts of artists, musicians, and authors who
`rely on copyright protections to make a living. It
`would, for example, protect Respondents’ original
`photographs in this case, which serve as the “source
`image[s]” for Andy Warhol’s “Prince” series, and
`compete in the same market as the Warhol art for
`publication in magazines seeking to run images of
`Prince. JA607 n.1. The diluted test for fair use
`proposed by Petitioner would instead eviscerate the
`licensing market by which artists control the use and
`distribution of their original works, which in turn
`could hobble the critical media and entertainment
`sector of the American economy. The Court should
`reject Petitioner’s asserted test and affirm the Second
`Circuit.
`
`
`
`
`
`7
`
`ARGUMENT
`
`I.
`
`THROUGH THE COPYRIGHT ACT, CONGRESS
`INTENDED TO INCENTIVIZE AND PROTECT
`ORIGINAL WORK, IN KEEPING WITH THE
`FOUNDERS’ DESIGN.
`
`A.
`
`History,
`American
`Throughout
`Copyright Law Was Crafted To Protect
`Original Creative Works.
`
`American legal history, from the U.S. Constitution
`and its historical antecedents to early federal case
`law, demonstrates that the core purpose of copyright
`protections is to encourage and protect creators of
`original work.
`
`The Constitution itself speaks to the importance of
`creating a uniform federal framework to safeguard
`original creative works. In Article 1, Section 8, the
`Constitution empowers Congress to “promote the
`Progress of Science and useful Arts,” by securing “to
`Authors and Inventors the exclusive Right to their
`respective Writings and Discoveries.” U.S. Const. art.
`1, § 8, cl. 8.
`
`This “Copyright Clause” centers on “Authors and
`Inventors” of original work and was designed to
`incentivize original creations and protect their
`makers’ exclusive rights. Relying on the British
`Statute of Anne—which established the principles of
`author ownership of copyright and a fixed term of
`protection, Statute of Anne, 8 Anne, c. 19 (1710)—the
`Constitution’s Framers
`included the “Copyright
`Clause” to incentivize “authors, artists, and scientists
`
`to create original works by providing creators with a
`
`
`
`8
`
`monopoly.”3 The Convention Debates make this
`purpose clear, as James Madison submitted two
`clauses for consideration that were focused on the
`protection of original work. James Madison, Madison
`Debates, AVALON PROJECT (Aug. 18, 1787) (proposing
`Congressional power “to secure to literary authors
`their copy rights for a limited time” and “to secure to
`Authors exclusive rights for a certain time”). And
`James Iredell—a North Carolina lawyer and ardent
`supporter of the Constitution writing under the pen
`name “Marcus” in response to George Mason’s
`Objections to the New Constitution after the
`Philadelphia Convention—defended the Copyright
`Clause as an “encouragement to genius.” Marcus IV,
`Answers to Mr. Mason’s Objections to the New
`Constitution, Recommended by the late Convention
`at Philadelphia, CONSOURCE (Mar. 14, 1788).
`
`The protection of authors and inventors via
`copyright was seen by the Founders as a service to the
`“public good.” THE FEDERALIST NO. 43 (James
`Madison). James Madison argued that “[t]he utility
`of [copyright] power will scarcely be questioned,”
`because copyright protection for authors in England
`was “solemnly adjudged . . . to be a right of common
`law.” Id. Madison explained that “[t]he right to
`useful inventions seems with equal reason to belong
`to the inventors.” Id. Essentially, Madison believed
`that “[t]he public good fully coincides” with protecting
`the creator of an original work. Id. In contrast, the
`
`
`
`3 Copyright Timeline: A History of Copyright in the United
`States, ASS’N OF RSCH. LIBRS., https://www.arl.org/copyright-
`timeline/ (last visited August 15, 2022).
`
`
`
`
`9
`
`constitutional debates did not explore exceptions to
`copyright protection or the rights of those who made
`copies or follow-on work based on original artistic
`creation.
`
`Right on the heels of adopting the federal
`Constitution, the Second Congress enacted a statute
`protecting copyright holders in 1790. The Copyright
`Act of 1790—an almost verbatim copy of the British
`Statute of Anne that applied exclusively to U.S.
`citizens—established that an author “shall have the
`sole right and
`liberty of printing, reprinting,
`publishing and vending [the author’s] map, chart,
`book or books, for the term of fourteen years.” Pub. L.
`No. 1-15 § 1, 1 Stat. 124. Section 2 of the 1790 Act
`further prohibited any person from “print[ing],
`reprint[ing], publish[ing], or import[ing]” any “such
`map, chart, book or books” without the author’s
`consent. Id. § 2. The 1790 Act was amended twice—
`extending copyright restrictions to etchings and
`requiring notice of copyright registration on copies of
`works and, later, expanding the jurisdiction of courts
`to hear patent and copyright cases—but no portion of
`the 1790 Act or amendments made allowances, aside
`from consent, for the derivative use or copying of an
`original artistic creation. See Pub. L. No. 1-15, 1 Stat.
`124.
`
`Similarly, early cases, from which the fair-use
`doctrine emerged, emphasized that copyright was
`designed, first and foremost, to protect an artist’s
`original work. As Justice Story explained in a
`seminal case holding that an edited compilation of
`George Washington’s papers
`infringed a prior,
`unpublished collection, “[t]he general property in the
`
`
`
`
`10
`
`the writer and his
`in
`manuscripts remains
`representatives, as well as the general copyright. A
`fortiori, third persons, standing in no privity with
`either party, are not entitled to publish them, to
`subserve their own private purposes of interest, or
`curiosity, or passion.” Folsom, 9 F. Cas. at 346.
`
`Justice Story nevertheless recognized there could
`be instances where an author draws upon and makes
`such changes to prior protected material that it
`results in an “original and new work” that falls
`outside the scope of the copyright. Id. at 347. To
`determine when that occurs, Justice Story analyzed
`“the nature and objects of the selections made, the
`quantity and value of the materials used, and the
`degree in which the use may prejudice the sale, or
`diminish the profits, or supersede the objects, of the
`original work.” Id. at 348. In light of these
`considerations, Justice Story determined that a copy
`or derivative work was prohibited if it “cite[d]
`the most important parts of the work, with a view, not
`to criticise, but to supersede the use of the original
`work, and substitute the review for it.” Id. at 344–45
`(emphases added); see also Story v. Holcombe, 23 F.
`Cas. 171, 173 (C.C.D. Ohio 1847) (finding that a work
`that “communicates the same knowledge as the
`original work, . . . is an actionable violation of literary
`property”).
`
`Importantly,
`the
`transformation
`analysis—which is a fact-intensive inquiry involving
`“[m]any mixed ingredients,” Folsom, 9 F. Cas. at
`348—focused on whether “the value of the original is
`sensibly diminished, or the labors of the original
`author are substantially to an injurious extent
`appropriated by another.” Id. If that was the case,
`
`the copying “constitute[d] a piracy pro tanto.” Id.
`
`
`
`11
`
`By contrast, historical copyright principles
`demonstrate that the artist’s purpose in producing an
`imitative work
`is of
`limited
`importance
`in
`determining
`infringement.
` As Justice Story
`explained, to determine fair use “[t]he true question
`is, whether the same plan, arrangement and
`combination of materials have been used before for
`the same purpose or for any other purpose.” Emerson
`v. Davies, 8 F. Cas. 615, 618–19 (C.C.D. Mass. 1845)
`(emphasis added)
`(finding plaintiff
`infringed
`defendant’s arithmetic textbook by creating highly
`similar
`copies of
`sections on addition and
`subtraction). With that understanding, the Court
`found that it would be permissible for an author to
`gather and borrow materials from known sources, but
`they must be “combined in a different manner from
`what was
`in use before” and serve as “real
`improvements upon the existing modes” in order to
`avoid infringement. Id. at 619 (emphases added).
`That is because copyright is designed to protect the
`“skill and labor” of the artist, and an imitator has no
`right to take “substantially and designedly” from the
`work, skill, and labor of another. Id. Petitioner’s
`asserted “meaning or message” test disregards this
`important aspect of U.S. copyright law.
`
`B.
`
`The Copyright Act’s Text And Structure
`Include Broad Protection Against Use Of
`Copyrighted Material In Derivative
`Works.
`
`The copyright principles espoused by the Framers
`and discussed in early cases laid the groundwork for
`the Copyright Act of 1976. Following passage of the
`1790 Act, Congress revised general copyright
`
`
`
`
`12
`
`protections on several occasions, but largely deferred
`to the judiciary to address copyright protections on a
`case-by-case basis. Cf. H.R. REP. NO. 94-1476, at 66
`(1975); S. REP. NO. 94-473, at 62. Following
`approximately 150 years of legal development, the
`Copyright Act of 1976 was a large-scale endeavor to
`codify established copyright principles, including the
`fair-use doctrine that had emerged as a limited carve-
`out to copyright protection.
`
`The text and structure of the Copyright Act of 1976
`make clear that copyright is principally designed to
`protect an artist’s rights against improper copying or
`imitation. When interpreting a statute, the Court
`follows “the basic and unexceptional rule that courts
`must give effect to the clear meaning of statutes as
`written.” Estate of Cowart v. Nicklos Drilling Co.,
`505 U.S. 469, 476 (1992); Cent. Bank, N.A. v. First
`Interstate Bank, N.A., 511 U.S. 164, 188 (1994)
`(“Policy
`considerations
`cannot
`override
`our
`interpretation of the text and structure of [a
`statute].”). Accordingly, the Court must endeavor to
`read the statute in a way that “giv[es] each word its
`ordinary, contemporary, common meaning.” Star
`Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct.
`1002, 1010 (2017) (internal citations and quotations
`omitted). This
`is particularly
`important
`for
`copyright, as this Court has previously condemned
`courts that give “insufficient deference to the scheme
`established by the Copyright Act.” Harper & Row,
`471 U.S. at 545. A straightforward reading of the
`Copyright Act shows that Congress sought to protect
`and incentivize the creative efforts of a copyright
`holder, including protecting against use in derivative
`
`works, with only limited exceptions.
`
`
`
`13
`
`Section 106 of the Copyright Act, for starters,
`grants “exclusive rights” to copyright owners,
`including the broad right to “prepare derivative works
`based upon the copyrighted work.” 17 U.S.C. § 106.
`A “derivative work” is defined, in turn, as “a work
`based upon one or more preexisting works, such as a
`translation, musical arrangement, dramatization,
`fictionalization, motion picture version, sound
`recording,
`art
`reproduction,
`abridgment,
`condensation, or any other form in which a work may
`be recast, transformed, or adapted.” Id. § 101.
`
`This broad conception shows that Congress could
`not have intended to take outside the realm of
`copyright protection any use of prior protected work
`for a different meaning or message. If a mere change
`in purpose were the touchstone, then nearly any
`“musical
`arrangement,”
`“dramatization,”
`“fictionalization,” or “motion picture version” of
`copyrighted material would easily fit the bill. Id.
`
`In contrast to the broad scope of section 106,
`section 107 codified the limited fair-use exception to
`copyright protection set forth in Folsom and similar
`cases. Section 107 begins by stating that the “fair use
`of a copyrighted work, including such use . . . for
`purposes such as criticism, comment, news reporting,
`teaching (including multiple copies for classroom
`use), scholarship, or research, is not an infringement
`of copyright.” Id. § 107. As several members of this
`Court have noted, “[e]ach of these uses . . . reflects a
`common theme: each is a productive use, resulting in
`some added benefit to the public beyond that
`produced by the first author’s work.” Sony, 464 U.S.
`at 478 (Blackmun, J., dissenting); see also Campbell,
`
`
`
`
`14
`
`510 U.S. at 579 (explaining that a “transformative”
`use “provide[s] social benefit, by shedding light on an
`earlier work, and, in the process, creating a new one”).
`
`This Court has held that this statutory list of
`acceptable purposes is “illustrative” of permissible
`fair use. Campbell, 510 U.S. at 577. But while the
`list is not exhaustive, it does not follow that any new
`purpose attached to preexisting artwork would defeat
`the copyright. To the contrary, any permissible fair
`use not listed in the statute should share the same
`characteristics as the items in the enumerated list.
`Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486
`(2006) (“A word is known by the company it keeps”—
`a rule that “is often wisely applied where a word is
`capable of many meanings in order to avoid the giving
`of unintended breadth to the Acts of Congress.”);
`Washington State Dep’t of Soc. & Health Servs. v.
`Guardianship Est. of Keffeler, 537 U.S. 371, 384
`(2003) (“[W]here general words follow specific words
`in a statutory enumeration, the general words are
`construed to embrace only objects similar in nature to
`those objects enumerated by the preceding specific
`words.”).
`
`Importantly, the statutory examples of fair use all
`involve uses that discuss, critique, or elaborate upon
`the original work in some unrelated forum, rather
`than copying elements to compete—or to substitute—
`in the same market as the original. Teachers,
`researchers, and art critics may make use of
`copyrighted material as necessary
`to
`create
`innovative work in their respective professions, but
`textbooks, academic articles, and art reviews are not
`market substitutes for the underlying work. The
`
`
`
`
`15
`
`Copyright Act’s preceding history, codified into the
`plain text of the statute, likewise confirms that fair
`use precludes a use that “supersede[s] the use of the
`original work, and substitute[s] the review for it.”
`Folsom, 9 F. Cas. at 344–45; see also Harper & Row,
`471 U.S. at 550.
`
`further
`fair-use exception
`The text of the
`demonstrates that the
`imputed meaning of a
`derivative work has a limited role at best in
`determining its application to otherwise applicable
`copyright protections. Borrowing from Justice Story’s
`fair-use analysis in Folsom, the statute requires that
`courts weigh four different factors: (1) “the purpose
`and character of the use, including whether such use
`is of a commercial nature or is for nonprofit
`educational purposes,”
`(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 upon the
`potential market for or value of the copyrighted
`work.” 17 U.S.C. § 107. This Court has recently
`reaffirmed the statutory factors and the need to
`consider all four elements. See Google LLC v. Oracle
`Am., Inc., 141 S. Ct. 1183, 1201 (2021). In other
`words, Petitioner’s exclusive focus on the “meaning or
`message” of a derivative work, at the expense of the
`express
`textual
`factors, would eviscerate
`the
`statutory mandate by Congress that courts should
`make case-by-case fair-use determinations.
`
`The first factor of the fair-use test (which is the
`crux of the case before this Court) demonstrates that
`Petitioner’s reading cannot be correct. This factor
`focuses on the “purpose and character of the use,
`
`
`
`
`16
`
`including whether such use is of a commercial nature
`or is for nonprofit educational purposes.” 17 U.S.C.
`§ 107(1). The text makes no reference to meaning or
`message. And by attempting to narrow this factor
`substantially by focusing on merely the artist’s
`meaning or message of a derivative use, Petitioner
`would eliminate the textual instruction to consider
`whether the use is “commercial” or “nonprofit” in
`nature. As noted, “[t]he fact that a publication [is]
`commercial . . . tends to weigh against a finding of fair
`use,” regardless of the meaning or message. Harper
`& Row, 471 U.S. at 562 (emphasis added). Further,
`this statutory explication of what constitutes the
`“purpose and character of the use” reinforces the
`lesson to be drawn from the statutory examples of fair
`use discussed above: A use is more likely to be fair
`when it is deployed in a different context (or market)
`than the original.
`
`Similarly, the fourth factor under the test
`reinforces the notion that a follow-on work must do
`something more than merely attribute a new meaning
`or message to a previous work. Consistent with the
`rights granted to copyright holders under section 106
`of the Copyright Act, analysis under the fourth factor
`must consider the author’s rights and expectations in
`derivative markets, an “imp
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