 Good evening distinguished panelists and attendees. Good afternoon on the West Coast and welcome to Art Law Warhol Foundation versus Goldsmith. My name is Jeff Prostowski. I'm a 3L and president of the Intellectual Property Law Association at RWU Law and an incoming IP litigation associated with Morgan Lewis and Bakias in Boston. I'm pleased to announce that over 620 people preregistered for this webinar from across the country. Thank you all for being here. Before we begin, I'd like to thank our sponsor, the Copyright Society, especially Dr. Bomethie Viswanathan, who I had the pleasure of studying copyright with this semester, as well as Kate, Jen, Naomi, Casey, and Bobby. I'd also like to thank the board of IPLA, Morgan, Irving, Christopher, Ishita, and Lindsay, as well as our faculty advisor, Professor Nikki Kukas. And thank you to Polina Volkovich for the beautiful poster. Tonight's webinar will be recorded. And if you would like a copy of the recording, please email me at IPLA at g.rwu.edu. Feel free to post your questions in the Q&A during the panel and either one of the panelists will answer your query during the talk or we will try to cover the question in the Q&A segment afterwards. So let's begin. Professor Lessig said that fair use in America simply means the right to hire a lawyer. William Paltry wrote that regrettably, the understanding of derivative works is fast approaching incomprehensibility. The issue in this case is whether Warhol's silk screen print of prints was a transformative fair use under the copyright law, such that despite allegedly infringing upon the rights of the photographer Lynn Goldsmith by copying expressive portions of her photograph, Warhol's work was lawful because of transformative use with a new meaning or message furthers the purpose of copyright law promoting creative expression for the public good. But the courts are split on the test for what exactly makes for transformative use. The district court thought it was transformative because it had a new meaning or message commenting on modern society, but the circuit court disagreed and held that if the work was recognizably derived from the original, it cannot be transformative. Supreme Court held lively oral arguments last week and now the fate of how much an artist can legally borrow from prior work is in the hands of the Supreme Court. All right, cue slides. Here we go. That will start there. Depicted is the original photo of prints by Lynn Goldsmith next to Warhol's purple prints and Warhol was commissioned by Vanity Fair Magazine in 1984 to use this photo as an artist reference to make a new work of art to illustrate the article, purple feign and appreciation of prints at the height of his powers that quotes, escape from prints is no longer possible. Finally, he has arrived. Warhol died in 1987, prints died in 2016. The Warhol Foundation was approached by Condé Nast in 2016 to use another piece from the print series for a tribute issue to prints. They paid over $10,000 to use orange prints. It turns out that Warhol made two pencil drawings and 13 silk screen paintings along with the purple prints he submitted to Vanity Fair. Goldsmith saw the cover for the Condé Nast article and sued the Warhol Foundation for copyright infringement. The Warhol Foundation argues fair use. The question presented to the Supreme Court is what is the proper test for whether a work is transformative under the first factor of the Copyright Act's Fair Use Doctrine cut slideshow? There we go. First panelist is Professor Jessica Lipman. Professor Lipman, a past trustee of the Copyright Society, teaches copyright law at the University of Michigan Law School and is currently an advisor for the American Law Institute's Restatement of Copyright. Professor Lipman, some say fair use has gotten too big. The transformation is the essence of the derivative work right. Is that a rhetorical trick? And if the concept of the defendant adding quantitatively or qualitatively to the plaintiff's work is legitimate, should Judge LaValle have picked a different word other than transformative? So some always say that fair use has gotten too big. I've been teaching for 38 years, which makes me sort of in the middle of this group. And I've never known a year when some people haven't said fair use has gotten too big. We've had the transformative use test since the Campbell case in 1994. And I think courts have, without question, fallen into the completely understandable error of feeling that whether a use is transformative is the name of the game, is the ball game. So they decide this is a fair use or this isn't a fair use and proceed to reverse engineer this is transformative or it isn't transformative. It is always gonna be the case that a fair use is going. So it's always the case that a fair use is otherwise gonna be an infringement of copyright. So if you make a derivative work, yes, transformation is the essence of making a derivative work, but we don't even get to fair use until we've decided that without fair use this work would be infringing. Although I think the district court in this case jumped the gun and said, I don't need to decide if this is gonna be infringing. I'll just decide it's fair use anyway, which set us up for the second circuit deciding without looking at any of the evidence of whether the works were substantially similar that this was nonetheless substantially similar as a matter of law. So it would be really nice if the Supreme Court gave us a helpful test said, this is what we mean by transformative or said, you doofuses, we never meant that transformative is it, that if it's not transformative, it's not fair. We were talking about transformative being a particular kind of fair use and either of those would be super helpful. Something that I think would not be helpful is the kind of opinions we've gotten used to receiving in area in Google, I think, where the court says, we're not gonna tell you about the test, we're not gonna give you any general principles, we're gonna give you nothing that is useful for other cases, but we know it when we see it and when we look at this, this one is transformative, even though we can't tell you how it would apply to anything else that will settle this case one way or the other, but it won't help the lower courts with, I think, their confusion over whether something has to be transformative for the use to be fair and if so, what transformative means. Great, and a lurking issue is what parts of Goldsmith's photograph are a protectable expression? There are many photographers in the audience tonight, what parts of photograph does copyright law protect and will the Supreme Court tell us more in this opinion? I think it probably can't tell us more in this opinion, which is too bad. Photographs have been protected by copyright for more than 100 years and we haven't settled what parts of a photograph are indeed protected by copyright, what are the photographer's choices or a result of the photographer's manipulation of the tools that she's able to use and what is Prince's face? The district court was invited to decide that, had all sorts of evidence from both sides about that and didn't go there because that's in some ways really hard. The record below talks a lot about what Warhol changed. There are disagreements about that in the record below, but it has to be the case. I mean, in today's world, we all use photographs for many things and if we had a clearer CRISPR sense of what parts of a photograph are protected by copyright and what are preexisting reality that other people can use that would both give photographers more certainty in deciding how to license and how to enforce their copyrights and give the rest of the world more certainty in trying to figure out what we can do with photographs of reality. I mean, none of us, I've never seen, I never saw Prince in person. My only experience of Prince is via photographs and I expect that's true of most of us. How about the, I read in some opinions that they were saying the face, is Prince's face, you know, his pose, is that copyrightable? And I think his face and his pose don't belong to Goldsmith. I mean, a copyright postulist is only the expression that you add is covered by your copyright. And whoever created Prince's face and his expression, that's not, I think, the photographer. The problem is that the record before the Supreme Court procedurally doesn't really give the court a clear opportunity to tell us what aspects of Goldsmith's photograph are protected by her copyright because the petition for cert really raised only the transformativeness point. And so they would have to reach out beyond the briefs to read the record below, I think, to be able to address the copyright ability of photographs generally. And while that might be a very good thing for them to do, it's kind of unlikely, I think. The people on the panel who have in some ways more knowledge and experience with this may disagree with me and think that, no, that's something that's gonna happen. Great, and so just because you're the first panelist, if you wouldn't mind just walking us through, I've got here the transformation rule here as explicated in one of the briefs. It says, Campbell and Google establish a straightforward rule. A follow-on work is transformative and has a different purpose and character under section 1071 when it can reasonably be perceived to add something new by altering the first with new expression, meaning or message. And they're saying that's from Campbell and Google. So, okay, so what is the problem with the second circuits analysis? Did they apply this transformation rule? Or were they doing something else, like trying to put a big black Sharpie over Karyu? Well, I think they were clearly trying to put a big black Sharpie over Karyu. And they weren't able to say, Karyu was a mistake, we don't believe that anymore. They had to work within the confines of Karyu. I think, however, the test the second circuit adopted, which is if you can recognize the underlying source, it's not transformative, it would be disastrous if anyone took it seriously. So that can't be, they clearly wanted to sort of send this back to the district court and say, Goldsmith wins, the foundation loses, and so here is a very firm clear rule. But it's, it will be a very hard rule to apply to all of the cases that come up in the second circuit, raising fair use. So I hope they don't mean it. Wow. And I know that you just read 35 essays from your copy class responding to the oral arguments from this case and predicted the outcome. Just what are your thoughts on the oral argument and maybe what do your students think? Well, so my students understandably went with who did the most effective job in oral argument. And I think everyone would agree that Lisa Blatt said, it was just wonderful. So they're sure pretty much that the Supreme Court is going to affirm. Some of them perceived in the justices questions, a desire to look for a middle ground. And so they think that the SG's rule, which I personally, if it is, I think would be the worst of all worlds is going to be the world that the court will go with. I think it's sort of while the SG's rule is superficially really appealing because it's the rule we apply to derivative works, which is each use of a derivative work needs permission or a license or a privilege from the underlying work in fair use. We don't have an initial negotiation between the purported fair user and the author of the underlying work. So they can't work that out at the front end. They can't say, hey, I want to make a Broadway musical based on hairspray. Let's figure out how we're going to divide up the money the high schools pay to musical theater international when they do a production because there isn't that initial negotiation. And that means that if every use of a purported fair using work, every use of critical commentary, every use of a parody, every use of a scholarly analysis of Warhol's art is going to need a separate analysis or license. The chilling effect of that and the transaction costs just seemed to be to just dwarf the rest of the world. If I tell my local bookstore, you can't carry this book that analyzes Warhol's art unless you go and get permission from the photographers who licensed his work in the first instance, the bookster is going to say fine. I'm not going to carry the book. That's easy. So I very much worry about that rule, but several of my students have suggested that's going to be the rule of Supreme Court of Dots. Wow. So let's go to the Q&A and see here. We've got a question from Deborah Price asking if you could kind of define and explicate more about fair use and perhaps its purpose since you are again the first panelist and we're talking about fair use here. Please define fair use. Cool. I mean, this takes me two weeks in class. So there are various uses that the law has decided while they may reproduce or adapt or distribute copies of or publicly perform or display some portions of protected underlying expression. We're going to allow them anyway. And we're going to allow them anyway based on the purpose they serve and based on whether or not they harm the market for the underlying work. So if in order to write a review of a book, I need the permission of the author of the book because I'm going to be duplicating some of the expression. I'm going to quote. I'm going to summarize the plot. Then the author of the book will say, well, if it's a good review, I'll give you permission. And if it's a bad review, I won't. And since we want candid reviews, we just go ahead and say, yeah, that's okay. Similarly, parodies are commonly considered to be fair use when they're criticizing the underlying work they're parodying because again, if we needed permission, we wouldn't have them. But they're uses that use the work for a good purpose that don't harm the copyright owner too much and do help readers and listeners and viewers a lot. And it's always been a sort of squishy rule where we're balancing the various interests and saying, well, you know, this use is fair and this use is not fair. Best start can do I think in, you know, 90 seconds. Thank you so much, Professor Libin. And feel free now that we're moving on to our next panelist to answer some of these Q&A questions if you want to type out any answers. Okay, so next up we have Jordanna Rubel. Jordanna works on a wide range of legal matters within the U.S. Copyright Office, including advising the Department of Justice on litigation matters and providing guidance to departments within the Copyright Office. Jordanna can join the Copyright Office in 2018 after more than 10 years as a litigator in private practice, where she represented clients on copyright trademark false advertising and trade secret matters. She clerked for David Hamilton, now on the 7th Circuit Court of Appeals when he was a district court judge in the Southern District of Indiana. Jordanna, welcome to the panel. First question for you. How does the government amicus brief get written? Does the Copyright Office work directly with the Justice Department or how does the process work? I'm sure some of our attendees would love to know. Sure, and I'm happy to talk about this. This is actually one of my favorite parts of my job. And before I start, just thanks very much for having me and allowing me to do my best to represent the government's perspective in this case. So when the Supreme Court decides that it will grant cert in a case, and sometimes even if they're seeking the Solicitor General's views before deciding whether to grant cert, there's kind of a frenzy of activity on the government side. The Department of Justice will decide who's going to be staffing the case from their side, and they will send an email out to all the Office of General Counsel in any agency or quasi-agency that might have an interest in the case. So it really depends what type of case it is and what kind of issues it brings up. Here we were squarely in the copyright world and we're not really dealing with the doctrine that has statutory language that's similar to other statutes that might impact totally different agencies. But there still may be interest from other agencies like the Department of Commerce because the decision might have an impact on the United States government's commercial interests. Certainly the U.S. Patent and Trademark Office has a whole copyright division, so they have an interest in this case and others as well. So the email goes out saying, we're interested in getting agencies' views on this case and each of the agencies puts together a memorandum. We also have an opportunity if the parties are interested in meeting with us and pitching their side or their position. So it's an interesting opportunity to hear what their arguments are sometimes for them. I think it's an interesting opportunity maybe to test out different arguments and see how the government responds to those. And everybody then hands in their memoranda. The Department of Justice is tasked with putting those together and writing up its version of a brief. And then the government representatives who are interested in the case then have another chance to meet with the parties and they make a more official presentation. The Office of the Solicitor General really runs that part of the interaction with the parties. It's a really interesting day. It usually typically has been in person. We're in a big conference room. Petitioner comes in with their group of lawyers. Then we ask a lot of questions. They leave. The respondent comes in with their group of lawyers. We ask a lot of questions. They leave and then just the government folks are left sitting in the room hashing out. Which way do we think we want to come down here? And then the Office of the Solicitor General really takes the lead in drafting what the final brief looks like. Of course, in a case like this, that's primarily copyright. The Copyright Office consults with them. Answers a lot of questions. Participates in the moots before the oral argument. And generally tries to make sure that we're coming up with a position that everybody can live with and get behind. Wow. So is your position the same as respondents? And if not, how is it different? So in many respects, the government does have the same position as the respondents here. And I can kind of kind of try to go through in what ways I think we're coming at this from the same perspective. The first is, and this relates to one of the points Professor Littman was making previously. The first is we really do think it is important to focus on specific use at issue at issue here, which we think is the commercial licensing of that orange prints, not the creation of the works here. And actually, you know, I think we believe that that is the current state of the law, that that wouldn't be a change from what the current state of the law is. So that's number one. We think that the real issue here is whether the commercial licensing of orange prints by the Andy Warhol Foundation was fair use. And within that, the first factor being number one, it's not disputed here that it was commercial. So the disputed piece is was it transformative? We also agree with the respondent that the meaning or message test that's the petitioner is advocating for, we don't think that is a fair characterization of the rule from Campbell. We do note, of course, that the words meaning or message do appear in Campbell. But what we actually believe is that you really need to focus on the statutory text, which is focusing on the purpose and the character of the use. And that here, the purpose of the use was to illustrate an article. And that is the same as the purpose of the original photograph, which was to serve, which was, you know, to illustrate prints as an artist. And which was licensed by Goldsmith herself to be used as an artist reference. For an article. Discussing prints. So we think that, you know, despite the addition of material to in the secondary work, we think they ultimately have identical purposes. And that the inquiry really ends there. Now, how do you respond to to this from from one of the briefs that it said that actually the panel aired in considering the purpose of the prints at far too high a level of generality. The panel's observation that both works or portraits of prints ignores what each works says through its respective portrayal, whereas Goldsmiths displayed Prince's unique human identity. We're all depicted prints to reflect back to the viewer is skewed into humanizing view of celebrity. The two works thus had different purposes because they conveyed different meanings and messages. I mean, I think that's exactly the kind of analysis we're trying to get away from. Because it's really hard to determine what was an artist intent, either at the moment or retrospectively, particularly when the artist who created the work hasn't been alive during the course of this litigation. So think, you know, the danger of this kind of test or among the dangers of this kind of test is putting a judge in a position where he or she has to determine what was the intent of this artist. And, you know, I'm not sure practically how that is supposed to work. Is this supposed to be a battle of the art experts where, you know, this person, this art historian gets on the bench and argues, well, I believe based on my understanding of Warhol's art that his intent must have been this. And then a different art historian gets up and says something different. Or can we look at the facts in this case and say, this was a commissioned work. He was illustrating prints for use to illustrate an article about prints, and that was his intent here. So I think if we try to get, if we make this an entirely subjective inquiry, I'm not sure how that is supposed to work out practically in the courtroom. Sure. And I'm just curious, you know, an oral argument at the end, the justices were trying to clarify with the government about what the exact standard should be. Is it necessary and useful, necessary and highly useful? Is it exactly, and I just would love for your kind of thoughts on what that is about. Yes, good question. So I actually, that was not my favorite part of the oral argument, just speaking as myself, not on behalf of the government, but I think some of the nuance in the government's brief was a little bit lost when we got to that point in the oral argument. And I'll try to explain what I mean by that. In the amicus brief that we submitted, we tried to explain that, and I think everyone will agree to this point, fair use is a very context-specific inquiry. We were not trying to address every possible way a work can be considered transformative. There's a long footnote in our brief that tries to explicitly say that. I think what we were trying to say is that in certain circumstances, it will be clear that the purpose of the secondary work is different than the purpose of the original. So we were trying to make sure that the secondary work, like in Campbell, when it was commentary on the original, when it was a parody, in those kinds of cases, it is necessary or at least helpful or very helpful or whatever kind of adverb you want to add in there for the secondary user to be able to copy portions of the first because they won't be able to use the original work. But that's not the only circumstance in which it would be permissible or in which we think it would be transformative for somebody to use the original work. I think that is in response to your previous question. That is one place where I think there was some daylight between our position and the respondents here. They argued in their brief that they did think it would be meaningful. This is again from one of the briefs. The panel claimed that there could be no meaningful dispute that the overarching purpose and function of the two works that issue here is identical, not merely in the broad sense that they are created as works of visual art, but also in the narrow but essential sense that they are portraits of the same person. I know overarching purpose and function is going to be the same. That is consistent with our view. I think here, and I thought Justice Jackson made a good point about this in the oral argument. If you look at the other language in the introductory portion of section 107 where the fair use of funds is codified, the level of, you know, the use of funds is a fairly high level. We are looking at things like commentary, news reporting, research. It is a fairly high level at which we are looking at things. If we look at this use from the same level, I think the use here is identical. If meaning or message is sufficient to establish a different purpose or character of the use, will just adding an Instagram filter be sufficient to allow somebody to get up and say, you know, I did add a new meaning or message by introducing this purple color or this purple shading? And I think that would be a huge detriment and danger to photographers and their copyrights and ability to make a living. Thank you. Let's look at the Q&A. What is the SGS proposed rule? Well, I think for the most part we think that Campbell is actually working. I don't think we are advocating for a new rule here. With the one caveat that I think is that the SGS is a very important question. And also noted, transformative use has kind of become synonymous in some courts eyes with a finding of fair use. We do think it would be great if we could get a clarification that all four factors need to be considered. Some may be more important than others in different contexts, but certainly I think it would be great. Wonderful. Thank you so much. And now we will move on to Professor Sandra A. She is also a fellow for the copyright research and policy and a senior scholar at the school center for intellectual property and innovation policy. Professor A. She is also a member of the Department of Commerce on IP implications for international trade negotiations. Prior to joining school, professor A. She was the CEO of the copyright alliance. And she also previously served as vice president and associate general counsel at time Warner Inc. And began her legal career in private practice as a senior scholar. And now we will move on to the commentary on Andy Warhol foundation. Professor A. We have heard arguments for Warhol and Goldsmith, what is your position? First of all, thank you for organizing the panel and for having me. And as you might surmise from the discussion, I don't think it's possible to do so on the issue of transformative fair use. Because the case has been presented in a way where the Supreme Court is being asked to answer an impossible question. A question where no foundation has been laid. The second circuit and the Supreme Court are considering whether Andy Warhol's use of Goldsmith's photograph in the print series was transformative fair use. And then also alluded to the Southern District of New York refused to consider and rule on substantial similarity first. And the second circuit also brushed this aside when they had the opportunity to consider the issue. And so there's been no basic assessment of infringement made. Substantial similarity in my view is something that it's an investigation that is the opportunity to make very important evidentiary findings about what is original and therefore protectable about both of the works at issue. And these kinds of findings are core and crucial for a later analysis of transformative fair use if that is ultimately necessary. I mean, to put it bluntly, how can you tell if something's been transformed if you don't know what it is to begin with? Well, in the oral argument, the justices repeatedly asked if a change of color could produce a new meaning or message. What are your thoughts on this? Well, again, I think the question was asked in the context of the transformative use inquiry and other questions that the justices asked probing purpose and character of the works at issue also illustrate my point about the importance of the threshold inquiry of substantial similarity to gather more information about the works before jumping into a transformative use analysis. I think there's this perception among courts and among observers of courts that an infringement analysis is either like skipping over the infringement analysis is either somehow procedurally efficient or that by simply assuming that infringement has occurred and moving on to the transformative use inquiry, you're doing the first artist of favor or you'll be able to move on and decide the case on some higher principles without getting the judiciary's hands dirty and messing around with the messy business of understanding art, but that's wrong. The ultimate effect when you sidestep these evidentiary inquiries and refuse to engage with artwork to properly assess and understand it is that you're shifting what's really a factual dispute to the Supreme Court to decide in the guise of a debate over the proper standard of transformative use. If you're looking to assess the facts even about a contemporary artwork without a lot of obvious narrative meaning it's much easier to do so if you're looking at the actual evidentiary basis work by work then it is to come up with a broad globally applicable standard like whether a change in color is signifying a change in meaning in the article that you referenced I talk about this hypothetical exhibit of solely made up of red squares and this is actually something that the art philosopher Arthur Donto talks about in one of his he uses it as an opening to one of his books and he talks about you've got this hypothetical exhibit of five, six works in this exhibit and imagine one of them is he says a clever little bit of Moscow landscape and that one's titled Red Square and then you've got another piece which is a still life painted by an embittered disciple of Matisse Matisse painted harmony and red so that one's a still life called red table cloth there's a bunch of other works in the exhibit but these two are a good enough example to make the point we can set aside for the moment the fact that the copyright office would never grant a registration for monochrome paintings but the point is that applying a substantial similarity analysis we could reach a conclusion that neither of these works is actually substantially similar to each other they represent completely different genres of painting they represent completely different ideas the artists did not copy expression protectable expression from one from the other they demonstrated their own original expressive intent and how they conceived of and executed their ideas on the canvas and we can do this without delving into and exploring the psyches of the artists and wondering whether there was some underlying meaning in the red square whether it was some commentary on Soviet society or whether the red table cloth was really like some commentary on dietary practices we can do this by simply looking at the titles and the times when these paintings were made and who the artists were and in terms of thinking about the originality of the works we can trace what was done in terms of the expression of the works how that was conveyed on the canvas by one by the other whether they had access to the works whether they were trying to convey the same meaning this is not to say by any stretch of the imagination that a mere assertion of new meaning by one artist should suffice I'm saying quite the opposite that a substantial similarity analysis is where you do the rigorous work of examining evidence about works and coming to conclusions about what the facts are so that when we get to the context of our use we've got the evidentiary grounding from which to make the larger globally applicable standards thanks professor and you know you mentioned exam and evidence properly engaged with the artwork now here's the second circuits language the district judge should not assume the role of art critic and seek to ascertain the intent behind the meaning of the works at issue judges are typically unsuited to make aesthetic judgments that are inherently subjective so is everyone wrong about blystein if so why yes I'm sorry that my friend Jordanna is going to be angry with me on this one as well people often misinterpret the dangerous undertaking quote in blystein as a warning to judges to stay out of the art world and to stop interpreting and analyzing and doing the evidentiary work that they should be doing when presented with two works of visual art but if you read blystein what justice Holmes was saying in blystein was that you should not be making up or down judgments about copyright protection or copyright enforcement about works based on your own personal tastes about the work he was not saying the judges should stay out of the art world justice but the fact himself examined the work at issue circus posters in that case and determined that this type of work low art the purpose and character of which in fact was to lure men to the circus by showing them the bare shoulders and fat legs of belly dancers they apparently had fat belly dancers back then they had to lure them to the circus with this but yet this low art was in fact protectable as copyright you know copyrighted expression and he ruled that these posters were protectable and that the knockoff posters were infringing so blystein should not be held up as an example for you know not getting involved with art not assessing the facts around art staying out of the art world great and so what what needs to happen in terms of substantial similarity can you give us a kind of sneak peek of the Meyer lecture and what your paper discusses well it's sort of given you partially at least a sneak peek of my views at least as they apply to the visual art world and the importance of doing a thorough substantial similarity evaluation I mean the interesting thing is that the Supreme Court has never ruled on substantial similarity Congress has never legislated substantial similarity so everything we know about how we deal with substantial similarity issues is based on what the lower courts tell us this case wasn't teed up for the Supreme Court to rule on this there are other cases in the pipeline that would be appropriate for such a ruling I agree I think with what Jessica was saying with Professor Littman was saying that you know the best result would be for the court to remand to the Southern District for further proceedings beginning with the full consideration of substantial similarity but I also think that's highly unlikely to happen you know in terms of a preview of my paper my paper discusses why performing a meaningful threshold substantial similarity analysis in any determination whether it's summary judgment or otherwise that's dispositive it is important and is consistent with the constitutional incentive for copyright and would lead to more logical outcomes in cases particularly where you're trying to draw these distinctions between derivative and transformative uses and I do so by talking about cases like Sarnay and I focus mostly on visual arts cases I think a couple of questions from the Q&A if you could put these into one answer Bill McGrath asks what are the potential consequences that could result from a ruling in favor of either party sorry I don't think they should dismiss I think they should remand back to the Southern District for fresh proceedings starting with substantial similarity what are the potential consequences that could result from a ruling in favor of either party so I honestly just think that whatever ruling you try to make without a proper foundation is going to be bad for artists in general any global pronouncements that is premised on trying to shift a factual dispute with a global pronouncement in the transformative use realm is going to be unfortunate for artists in one way or another as much as I would like to see Karyu carved back or crossed out with a big sharpie the second circuit didn't do it and the problem with Karyu is that it also didn't do a substantial similarity analysis to start with so partially the problem was relying on a case that itself had problems to begin with anyway I don't have strong opinions on this issue as you can all tell thank you so much Professor Asar we have Professor Emily Bazzotti who teaches at the California western school of law in San Diego the vice chair of the international division of the ABA's forum on entertainment and sports industries and an executive community member of the AALS art law section Professor Bazzotti's research and teaching interests are in the fields of art and cultural heritage law with a background in art history Professor Bazzotti's research focuses on the interdisciplinary connection between the law and arts within a national and international framework her scholarship centers on the intersection of cultural heritage law, human rights and social justice and cultural heritage as not only a medium of expression but a medium of marginalization Professor Bazzotti has explored how acts of plunder, destruction and even sometimes the erection of objects of cultural heritage service tools of oppression and persecution Professor Bazzotti, my biggest critique of law school is that no one talks about the race of the plaintiff and the defendant it is assumed that the law is unbiased so talking about plaintiff and defendant in the abstract like mathematical variables sometimes we even use math symbols or pi and delta instead of people's names my explorations in these panels for my 1L year race and IP copyright and racial justice, 2L year cultural misappropriation hip hop and the law and now 3L year has been my attempt to reassert the importance of the cultural narrative of people and how the law buys these verses of color often times when the plaintiff or defendant are persons of color and the law is not neutral so Professor, what insight does your work in cultural heritage critical race theory and IP illuminate on the subject of a controversy between two white visual artists over who gets the profit off of a black musician's image is there any reinforcement of structural racism at play here Thank you Jeff for inviting me for this panel and of course asking me these critical questions so much of my research interest intersects on post-colonial theory, CRT, LATCRIT it's a lot with art law including IP so here we don't have a bi-pop artist that's directly involved in the case we have two white artists on both sides of the case however I think it's really notable that Prince, who is a black man is really the heart of the dispute so copyright law doesn't grant ownership of the images to anyone else when we're talking about photography other than the photographer so the models don't have any copyrights interest in the works for which they're being displayed and I think that's really important that we acknowledge these cases concerning copyright and photographs which involve bi-pop models so those who gain no monetary value for the use of their own body when creating these works and Professor Rosenblatt Elizabeth Rosenblatt has argued that copyright law gives authors the power to really exploit and misrepresent the subjects who are part of that of those images and we see examples of this and carry you obviously regarding the photographs of the Rastafarian community we see it in the Perfect 10 case we're looking at photographs of female bodies the Morrell case we are looking at photographs of the Haitian earthquake victims and most recently since the deaths of Trayvon Martin, Breonna Taylor, George Floyd we see that numerous retail companies are also beginning to sell clothing and apparel using the name image and likeness of these particular people so while this is really a copyright case it's also important to consider these racial aspects because we know that's more really in the purview of right of publicity or trademark all broadly but I think it's important for us to acknowledge in this specific issue that we're looking at the exploitation of bi-pop people in general and that's really will we get into the role of critical IP in our discussion as well and so do you think is race relevant to copyright law outcomes why should we talk about race here specifically and generally in law school so I think there's a little bit of a temptation for in copyright to consider copyright kind of non-discriminatory especially when we think about the principles of non-discrimination in Blystein and in a sense that might be true when we look at the copyright act it's facially neutral when we think about the identities of the authors and the types of works and when we think about the incentives of copyright from the constitutional clause we're also looking at really economic maximization and the encouragement of creation of works and you know the dissemination of works so on its face the copyright act is in race neutral but we see a lot of scholars recently specifically Professor Vats and Dean Deidre Keller really spearheaded this theoretical inquiry called critical race IP or we call it CRIT IP this really has emerged as a movement to focus on this theoretical framework of looking at critical race studies and the intersection with intellectual property and this is really a good way of looking at how BIPOC authors in particular are treated under the copyright act so a lot of these various scholars have identified ways in which the copyright system has promoted specific racial hierarchies so I think KJ Green was one of the professors who has identified I think he has spoke at on one of your panels but he's identified numerous doctrines within the copyright act such as I think the idea expression dichotomy the originality threshold fixation is something that I'm focused on in my scholarship my upcoming scholarship I'm focused on the factors that promote this racial hierarchy within copyright law and also we see that historically the copyright system has really permitted this misappropriation of black artists for decades since the 1909 act and so as it stands now I will I can say that copyright law is currently constructed in a way to privilege creative authors from dominant cultures as opposed from those in emerging or marginalized communities so I think it's important that we teach students who study copyright law in a really all subjects because I also teach property to recognize this structural racism that is common not only within the laws itself but culturally so it's a product of our legal norms and we have to acknowledge it and proactively advocate against it and we have to recognize our role as professors to do that and do you see that also I know the Karyu case has come up a couple of times and does do you see that as well in Karyu do you see that as a case between two kind of cultural appropriators so I wouldn't say that Karyu in particular is a cultural appropriator I think there's a fine line between cultural appropriation and cultural appreciation so Karyu was a professional photographer he went to Jamaica over the course in Rastafarians he developed relationships with the Rastafarians they allowed him to take these series of photos and photographs of him and he did it in a classical way in order to respect their culture and respect them and their autonomy as people on the other hand I think we could all agree that Prince's actions were much more problematic because he altered those photographs significantly and maybe and I don't think in a transformative way but I think reasonable minds could differ he didn't ask permission to do that he definitely didn't ask permission from the Rastafarian people and so I would say that Prince could probably could be considered both an appropriator and an expropriator here so I think Karyu not really but Prince yes Thank you now Professor Latif Matima filed a brief for Goldsmith on behalf of the Institute for Intellectual Property and Social Justice so which side is the social justice side in this debate? So I don't think either side is the right side for social justice I think again that reasonable minds can differ we can all have similar goals that there's a way to achieve social justice and copyright and I think that we can differ on the way or the manner in which to achieve those goals and I think that's one of the reasons that Prince's argument is really well done I agree with a lot of what he stated in his brief specifically about the historical record of exclusion and unjust practices within the industry and the application of copyright laws and I definitely agree with him that there's this hierarchy specifically in fair use cases where you see that the doctrine has applied for the advantage of very popular white artists and he cites a lot of really great critical IP scholars like Professor Unjali Professor Rosenblatt, KJ Green as I said before I think the problem is that to the transformative use doctrine is not what I think is really where the heart of the social justice issues is with IP I think it really comes from the constitutional mandate and what we consider progress so progress has really been recently more about economic maximization and these utilitarian goals and so I think it's really what we consider to be progress and I think social justice and equity should be part of that meaning and how we define and interpret what progress is so I agree with a lot of what Professor Matema stated in his brief but I don't necessarily think that making the transformative doctrine stricter is going to be the means to achieve more social justice in IP Thank you so much Professor now jumping off from the social justice topic to the Q&A I notice here that my faculty advisor has asked a question so I feel remiss I must say it Nikki Cooke has asked can you really separate the commercial licensing of Andy Warhol's image from the creation of that image if he had a fair use right to create the original image doesn't he also have a right to commercially license his own work and conversely if his image was illegally created surely he will not have the right surely he will not have the right to license it in either case isn't the real question whether the original Warhol artwork was or was not a fair use that's at 628 p.m. if the panelists are looking for it so I'll jump in and say my view is that you cannot separate the two and how would an artist judge what they can do in their studio practice if they had to somehow speculate out what somebody down the road after their death would do upon inheriting the work and whether that licensing practice would somehow be legal illegal I understand the I understand on one level the logic of saying yes we look at uses use by use but you have to think about when the work is created and what is in the artist's mind in thinking about how the artist is going to do the right thing as in accordance with copyright law right because if the artist is thinking about copyright law at all when creating a work let's presume that they are you know you know you're they're thinking about it when they're creating not you know not trying to speculate out what somebody somewhere down the line is going to do with the work right and the licensing entity on the other hand or the gallery exhibiting the work inherits whatever rights the artist had to give away you don't have you don't get any more or any less rights than the artist has to grant you I don't know yeah I'll respectfully disagree where that disagree where that opinion comes from because I don't understand where the sure yeah well I think this is one of the the factual mysteries because Andy Warhol died before we could get any information from him about what his intention was when he created these other works we know that at least purple prints was created pursuant to a license but we just don't know why the others were created maybe they were practice pieces to work on his technique in which case they could very well be fair uses what we do know though is that in his lifetime he never sought to commercialize them so you know we don't know what we don't know for sure but it was only after his death that his heirs were the ones who entered into this commercial license so I agree with you that it's if possible you can learn a lot based on facts that you can obtain during discovery about what the creator's intention was it's just not possible here it is very possible that for certain types of uses and there's lots of cases that show this work is evaluated differently based on how it's used there's a recent Nicki Minaj case where the court found that her creation of the new version of Fast Car itself was a fair use but the distribution of it was not a fair use so I think that courts can and have and can make informed reach informed conclusions looking specifically at the specific use thank you so much and our final panel tonight is Professor Pamela Samuelson Professor Samuelson is the Richard Sherman distinguished professor of law and information at the University of California Berkeley and director of the Berkeley Center for law and technology she's recognized as a pioneer in digital and information policy she's co-founder and chair of the board of authors alliance a nonprofit organization that promotes the public interest in access to knowledge she also serves on the board of directors of the electronic frontier foundation and the electronic privacy information center professor Samuelson has written and published extensively in the areas of copyright software protection and cyber law professor Samuelson you've seen it all what should the Supreme Court do here is it as easy as meaning and messenger relevant reverse and remands can they even affirm if no other factors have been briefed I don't think that they can affirm the entire fair use ruling even though the government's lawyer actually argued that I think at least two of the justices said but the other factors weren't weren't even briefed to us so I don't think they can even decide the purpose of the use the only thing before the court is the question presented as they granted cert and as to that question was Andy Warhol's creation of the Prince work transformative second circuit says not transformative at all and treats actually transformation as an all or nothing thing and one of the things that the author's Alliance brief tried to say and here is one of the few places where we agree with the government is that it's a matter of degree sometimes some things are modestly transformative some things are highly transformative some things are just transformative and not transformative and you can't consider any meaning and you have to decide it at this kind of really high level of generality right at a really high level of generality in Campbell they were both songs about women walk on the streets okay popular music and yet this kind of notion that you just got to go way up there at the ceiling so I think again the case was partly a reaction to the district court not having done its homework I agree with Sandra that it's like ridiculous that they didn't even try to talk about the substantial similarity issue and I know Keras Craig wrote an article saying these two things aren't substantially similar at all and there was before the second circuit on the first time that they issued an opinion that it's not substantially similar it's not substantially similar it's not at least a prima facie infringement of the reproduction or the derivative work right you don't get to fair use right and so that's one of the things it's very frustrating about the case is that it's really not the greatest vehicle on the other hand the simplest thing for the court to do is to say we've said twice and we're going to believe in starytocysis today that a new meaning or message is actually a sign of whether something's transformative or not so yes this is the Warhol work is transformative in the sense that it has some new meaning or message but it doesn't give too much weight to that one consideration it has to weigh the factors altogether and so we man for further proceedings if that's what the court does I think many of us will go shh and leave this for another day but it does seem to me that the court has an easy out here just as it had an easy out in the Google versus Oracle case you had a jury verdict right of fair use and it took a couple of weeks for that case to go through court had lots and lots of facts in it and a jury said it's fair use and then the Oracle says oh no no reasonable jury could have decided that and actually one of the things that even though the court in the Google opinion talks about oh fair use is mostly an issue of law it's got some facts but the court kept weaving all the facts that were in the record that supported the Google fair use defense so you know what is a fact and what is law I think part of what's going on in cases like this is that everybody wants to cross move for summary judgment and fair use is the easiest one to sort of do that because then you get to do the balancing thing and it seems to me that again I agree with Sandra that is like not a record here and you know in the Second Circuit basically spotted lots of different tests so part of what I would say the main reason the Office of Alliance put a brief in was because we thought that the Second Circuit opinion would cause much more confusion in the law than it would provide clarity so one point that says it has to be recognizably similar if it's recognizably similar then it can't be transformative then it says oh you know you have to take into account the overarching purpose or function it's like I don't even know what that means okay and and we give some examples of types of cases that nonfiction authors make of protected works when they're commenting right writing a book about such and such person and then the Second Circuit also talks about it has to have a distinct artistic purpose like how do I know that and we can't consider a meaningful message at all and judges can't make these kind of judgments like come on okay people have been doing it since 1994 and you're the only people who've been having a problem here now the you know again part of what the court didn't do is sort of say you know here are the reasons why these other factors might outweigh right I think nobody would have gone baloney crazy on this case if they if they just said it's transformative but the other factors outweigh I know I would have disagreed with that but but at least that would have been a respectable thing to say I think one of the other things that's about there are two other things that I want to mention about the about the about the Second Circuit opinion is that it doesn't even acknowledge that Warhol was given this photograph to use as an artist reference and then he was commissioned him to make a transformative work of art from the photograph to illustrate what fame does to somebody and the photograph was taken before he was really famous it was like but he was kind of on the rise and of course then it became this incredible icon but the you know the it was it wasn't transformative it wasn't fair use it's like I'm sorry he was commissioned to do this okay and she got paid for that and so I haven't been able to understand why the Second Circuit doesn't realize that there's at least one and possibly multiple derivative works that were authorized and once it's authorized then you own a copyright in it that if it was lawfully made then you can sell the work to somebody else distribute a copy and you can publicly display it you know can you commercially license it I don't see any case that's ever been really litigated where that's where an artist was commissioned to create a work of art they did it the work was there and you know he wasn't Warhol was not a party to the license that Vanity Fair entered into with Goldsmith's Goldsmith agent and there's no evidence in the record that he knew anything about the restriction that that Goldsmith is really relying on so those are kind of weird things and then the last thing I'll say because I'm all wound up is is that the Second Circuit tried to create this kind of like salamonic compromise not substantially similar not fair use but we don't have to issue an injunction and you know if the Warhol Foundation wants to sort of make a book about Warhol and use some of those things that'll be okay not just not the commercial license to the magazine it's like part of the opinion say oh it might be an infringing derivative but we're not deciding that it's like I'm sorry if it's an infringing derivative the Second Circuit didn't realize that section 103A would mean that the Warhol Foundation's copyrights would be totally dead now from the standpoint of the Warhol Foundation the government's position however I gotta go there right now whatever other characteristics one might say about it they at least would not challenge the copyright but that's what the parties are litigating about Goldsmith claim in the counter claim is that all 16 works are infringing derivatives and Warhol says they were they were fair use when they were created so the fact that the government's trying to change what the question presented is is like really weird I'm done with my round I want to mention that in Goldsmith's counter claim she is seeking a declaration that the Warhol Foundation owns no copyrights in the works because they were created in violation of 103 in conjunction preventing the foundation from publicly displaying any of the works of art in the print series so once the Second Circuit says this is substantially similar as a matter of law it's hard to know how you go back down and say oh but the district court has got the discretion to not offer that relief it happens automatically upon the finding of infringing derivative poof the copyrights disappear there so you mentioned Google v. Oracle I just wanted to clarify some say that Google v. Oracle is irrelevant in the context of the visual arts are they right or is Google relevant here and the Justice Breyer managed to slip in a reference to Andy Warhol on the soup cans painting so there is that but also Campbell is repeatedly drawn upon and Campbell has been used in every kind of fair use case out there now the people who want to say Google v. Oracle that's just a software case are people who were trying to get the Supreme Court to affirm the Federal Circuit's not fair use in the Google case so yeah I mean they wanted the Supreme Court to give fair use of haircut in the Google v. Oracle case it didn't work so now you've got to say hey but that's only a software case well it's not and how about what role does Warhol's fame play in this case that's come up a bit you know is the celebrity plagiarist argument clever or aggravating totally aggravating now I'm not saying that there are there aren't going to be issues arising some people would say that's what Gary versus Prince case was about but I think this is a case where because he was commissioned to make a transformative work of art from the photograph it's not celebrity plagiarism when you're commissioned under a license to do something like this so going off that is vanity fair the proper defendant in this case why is it significant that Warhol and Goldsmith were not in privity and that there's no evidence that Warhol knew about the artist reference if you could just flush that out a little bit the way the contract law works is that the contract binds the two parties to the contract and if you're not party to the contract and you don't have knowledge of a restriction in a contract over here when you are asked to create a work over here you can't be bound by something that you're not bound to so there's that but I think the issue about the celebrities and plagiarism I think the carry decision partly aggravates some people because the literati of the cool people and you can see that the second circuit panel just like on Warhol Lisa Blatt is a very good lawyer and the celebrity plagiarist line our meme was really clever but I think it's a bunch of baloney in the context of this case is the government right about the necessary or highly useful standard or is the standard reasonable in light of your purpose reasonable in light of your purpose they keep saying that and that's what the courts have been holding so I understand lots of people would like to give fair use of haircut as Jessica said at the outset everybody every year says fair use has gone too far and then it keeps going and you know I don't say that I agree with every single opinion out there but I think the first case was partly influenced by the trial court was going to seize all of the paintings and we're going to destroy them and so at second circuit or a argument that was likened to the kind of the the destruction by the Taliban of the Bamiyan Buddha and the idea that maybe they should have to pay something but the court basically I think was reacting to that so if Kerry went a little bit too far this way I think the Goldsmith court went in the other direction and so maybe everybody should just calm down so you've written that unless carefully capped into the kinds of foreseeable markets exemplified by the definitional this right can unduly restrain competition and follow on innovation as well as interfere with free expression interests of subsequent creators so why does the text legislative history and constitutional purpose cabin the reach of the derivative work right do you think Warhol's prince is similar enough in characteristics to the nine exemplary exemplary derivatives to be a close analog fairly within the scope of the derivative work right I think one of the reasons why this case has gotten so much attention is that the line between the kind of transforming transformative derivative work that you should have gotten licensed for and the transformative fair use that line has always been a little on the blurry side and this case again depending on how you look at it some people see it on this side and some people see it on that side like Sandra I would like to see a better record on this case and I think the the district court both skipped over the kind of prima facie issue and got too quickly to hey it's transformative there if I can get rid of this case and I think the the thing is that the there's a kind of unfairness thing underlying this whole case too which is you know it's like you know it was $100 in 1984 and they made $10,000 when they sent that but you know she actually came to the Warhol foundation and basically said I want seven figures of damages from you and you know I own all the copyrights and all of those works and it's like excuse me I don't have any more and I think this case again depending on who's looking at it illustrates that line for me personally if I was a judge on the second circuit panel I would have said it's transformative and you know I would want to have a little bit more of the facts on the ground but but I think it was transformative when it was created and again for me that extra little tipping thing is that he made it under a license and you know the shot case for example says that a derivative work that has been created under a license has a separate copyright separate copyright and they can sue for infringement and I think exercise their copyrights so I'm more I think again with Sandra on you know you get something it's a lawfully made work and it's got originality in it enough originality and I don't see why why they can't commercialize it but then you know we have just different points of view here that's part of the reason this case is so much fun and lastly you know when when the Constitution says that copyrights goal is progress of the arts you know is it talking about public access to knowledge just came up a lot in the briefs I was combing them and they said the purpose of copyright is to promote the ongoing creation and dissemination of knowledge to stimulate artistic creativity for the general public good but then also from the other side they said that the goal is ensuring that creators are given adequate monetary incentive to create the goal of copyrights to promote creators further speech and so on and so forth so how do you see the the meaning of that in the Constitution those words that progress of the arts well one thing you see is the Supreme Court at least not in Justice Ginsburg's opinions but in other opinions including the Google versus Oracle case you see the court having articulated that rewarding authors is a secondary consideration that the overall purpose of copyright is actually to promote the public good and to do so by encouraging the creation and dissemination of works of authorship so the the court has you know repeats itself about that particular formulation going back to the 1940s and so it's been carried through and a number of the Supreme Court opinions and so at least some of the justices I think have this higher purpose in mind which isn't to say that there's no license for anybody to say oh well I'm just I'm just adding to the store of knowledge and therefore everything I do with your work is is very use I don't think that's I don't think that's what anybody thinks but again fair use has been a kind of battleground for copyright for decades and you know the Supreme Court split four to four in one of the other fair use cases that were reported before the 76 act became effective so they you know and it was five four in the Sony case and so it's you know it's it's a it's a it's been a battleground for a long time. Thank you so much professors Samuelson we have five minutes for Q&A so and I should also say I saw maybe Professor Bazzotti raised her hand would you like to say anything or if any panelists have some responses to any of these you're welcome to oh yeah professor he starts erasing go ahead. I just wanted to say one thing that Pam's comments made me think of and that is this is such an interesting case to me because it's a fair use case involving two artists interests at heart right and the expressive use of artistic works between two artists not the work of an artist being exploited by a third party used by a third party in a different manner to promote a different business and so I think it's a great case for us to think about those core purposes of the copyright act and when you asked Pam and you read off those the various purposes that the copyright act is supposed to serve and the constitutional purposes of copyright my answer was yes all of those right and I hope you agree with me Pam sure yeah so and I think this is the case where all of us can say yes all of those and let's figure out how those get sorted and I think the reason why I and I think actually probably the reason why Pam and I are agreeing on this is because there are two artists involved and we both care about the fact that artists are allowed to control the commercial exploitation of their speech and expression but also build on the expression of others that is that's one of the core goals of the copyright act and that's that's what we're struggling with here and that's why we need a good record to do it. Thanks Professor Professor I just wanted to say that in some ways we have a new court that over the years justices Ginsburg Scalia and Breyer had very distinctive and I think well known approaches to copyright law to the point where if you were a court watcher you could almost draft the opinion yourself after oral argument with all of their voices no longer on the court it's really interesting to see which of the justices will persuade each other to sign on to a particular approach I'm not confident that they'll get into a conference and say let's do something that would be maximally helpful rather than arguing about who's right but it's more possible in some sense because we don't really know what to expect. Great and because I'm a musician I liked this question from Judith Finnell in music cases like Campbell with the transformative analysis being entirely different or at least more difficult if the music had contained no lyrics to cite and had been only based on melodic pitch harmony and other compositional elements anyone want to chime in on a music question I'm not a musician but I think the analysis might go the same way as we might analyze my red squares right we look at whatever factual information and extrinsic information we can gather to build our to build our records great any any other final comments on this from any of the panelists on this question or on any any other last last chance and transformative fair use last words no okay great thank you so much all the panelists thank you all for attending and again if you'd like a recording of tonight's webinar please email me at iplaatg.rwu.edu thank you again to the Copyright Society thank you so much sorry for the technical difficulties at the beginning I think we pulled it through thank you Jeff it was really a really fun thing to do and you did a masterful job as our moderator thank you so much