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Full-Text Articles in Law
Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton
Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton
Faculty Scholarship
This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …
Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg
Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg
Faculty Scholarship
This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …