COPYRIGHT & FAIR USE - IN THE LIGHT OF GHIBLI TREND

 

In the recent trend of photos being transformed to Ghibli Art – 

The United States Supreme Court's decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, dated May 18, 2023 sheds important light on focusing on “fair-use” in copyright

Case Background:

• Lynn Goldsmith took a copyrighted photograph of Prince in 1981.
• Vanity Fair obtained a one-time license to use the photograph as an artist reference for an illustration.
• Andy Warhol created the "Prince Series," including "Orange Prince," based on Goldsmith's photograph.
• In 2016, AWF licensed "Orange Prince" to Condé Nast for a magazine cover commemorating Prince.
• Goldsmith claimed copyright infringement, and AWF argued fair use.

Legal Issue:

• Whether AWF's commercial licensing of "Orange Prince" to Condé Nast constituted fair use under the first factor of 17 U.S.C. §107: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."¹

Supreme Court's Holding:

• The Court held that the first fair use factor weighed against AWF's fair use defense.
• The Court concluded that AWF's commercial licensing of "Orange Prince" shared substantially the same purpose as Goldsmith's original photograph (portraits of Prince for magazine articles about Prince).
• The court also determined that the commercial nature of the use, weighed against the similarity of purpose, caused the first fair use factor to weigh against fair use.

Key Points of the Court's Reasoning:

• "Transformative Use" and the First Factor:
• While "transformative use" is relevant to the first factor, it is not the sole determinant.
• The Court emphasized that the first factor focuses on whether the secondary use has a "further purpose or different character" compared to the original.
• The degree of difference in purpose or character must be weighed against other considerations, such as the commercial nature of the use.
• Adding new expression, meaning, or message is not enough, on its own, to make a work a fair use.
• Commercial Nature of the Use:
• The commercial nature of AWF's licensing weighed against fair use.
• While commercial use is not automatically disqualifying, it is a significant factor.
• Purpose of the Use:
• The Court focused on the specific use alleged to be infringing: AWF's licensing of "Orange Prince" to Condé Nast.
• Both Goldsmith's photograph and AWF's licensed image were used as portraits of Prince in magazine articles about Prince, indicating a similar purpose.
• Justification for Copying:
• When the original and secondary uses share similar purposes, a "particularly compelling justification" is needed for copying.
• AWF's argument that "Orange Prince" commented on the "dehumanizing nature" of celebrity was deemed insufficient justification, as it had "no critical bearing" on Goldsmith's photograph.
• Derivative Works:
• The court was also careful to not allow the fair use doctrine to swallow the copyright holders right to derivative works.
• Case Specific Analysis:
• The court made it very clear that their analysis was limited to the use of the image being used for the magazine cover. They made no ruling on the creation, display, or sale of the original Prince Series works.

In essence, the Court's decision clarifies that simply adding a new aesthetic or meaning to a copyrighted work does not automatically constitute fair use, especially in commercial contexts where the secondary use serves a similar purpose as the original.