Rightsholders Acknowledge the Importance of Fair Use to Creativity in Andy Warhol Case

In the first round of amicus briefs filed last week with the Supreme Court in Andy Warhol Foundation v. Goldsmith, several associations representing rightsholders submitted briefs in support of neither party that contained statements stressing the importance of fair use to creative activity. Although fair use is often described as a “user’s right,” these briefs underscore the central role fair use plays in promoting expression.

Motion Picture Association

In its amicus brief, the Motion Picture Association (MPA) stated that its members “have a substantial interest in the proper application of the fair use doctrine, which protects the creative processes and free speech interests of filmmakers and their distributors.” MPA members “regularly—and successfully—invoke the defense of fair use.” 

MPA then quoted Supreme Court precedent underscoring how fair use advances copyright’s objectives and First Amendment values. 

“From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s [constitutional] purpose ‘[t]o promote the Progress of Science and useful Arts[.]’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., art. I, § 8, cl. 8). The fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. at 577 (quotation omitted). Fair use thus promotes First Amendment values by affording “considerable ‘latitude’” for such uses as “‘scholarship and comment,’ and even for parody.” Eldred, 537 U.S. at 220 (quoting Harper & Row, 471 U.S. at 560).

The MPA brief then discussed various cases where it believed the courts correctly found fair use, and suggested the appropriate test the Supreme Court should articulate for transformative uses. 

Authors Guild and News Media Alliance

The Authors Guild and the News Media Alliance joined with other associations representing writers and publishers in an amicus brief stating that their members “rely on copyright’s fair use exception, 17 U.S.C. § 107, to create and disseminate expressive works.” The brief asserted that “an effective copyright system requires that the copyright owner’s exclusive rights and the fair use defense work together to encourage the creation and dissemination of expressive works.” Similarly, “creators and distributors of expressive works like amici and their members rely on the proper balance between the scope of exclusive rights and the fair use defense to ensure a fair reward for their efforts, all to the benefit of the general public.” 

The brief declared that “properly applied, the fair use defense likewise serves to incentivize amici and their members to create and disseminate expressive works.” The brief explained that “historically, the fair use defense emerged to prevent the rigid application of copyright law in a manner that would ‘stifle the very creativity which that law is designed to foster.’” Indeed, fair use “has the same ultimate purpose as the grant of exclusive rights—to promote the creation and dissemination of expressive works.” 

The brief observed that “Amici and their members frequently rely on section 107 for classic fair uses like quotation, criticism, and reporting, as well as to create expressive works that are transformative….” The brief then provided numerous examples of cases where media companies, authors, and books publishers successfully employed the fair use doctrine to defeat claims of infringement. In these cases, the rightsholders “rel[ied] on fair use to create expressive works.” 

The brief concluded that “when correctly applied, fair use, like the derivative-work right, is essential to fostering the creation of expressive works.”

Copyright Alliance

In its amicus brief, the Copyright Alliance stated that it “has individual members who both license their preexisting works for use in new works and who make fair use of preexisting works.” Copyright Alliance members 

therefore depend on a proper balance between the exclusive statutory right to control the creation of derivative works and the ability of secondary users to make fair use of preexisting works. That balancing requires an appropriately circumscribed fair use doctrine that furthers the purposes of copyright law, both by protecting the rights of copyright owners and by promoting the creation of new works. 

Conclusion

U.S. rightsholders are often dismissive of fair use in the context of the triennial section 1201 rulemaking or copyright policy discussions. They also frequently oppose the adoption of fair use in other countries. But as the rightsholder briefs concede in Andy Warhol (and other high profile fair use cases), fair use “is essential to fostering the creation of expressive works.”