After a thought-provoking decision from the US Supreme Court last month, American attorneys have been having their fun. But what about the rest of us? In the US, the case of Andy Warhol Foundation v. Lynn Goldsmith has inspired many a blog post, podcast and article for good reason: though it was not the banner-waving fair use decision many had expected – or hoped for – it contained plenty to dissect and discuss. And it was also accompanied by one of the strangest dissenting opinions imaginable (called ‘unhinged’ and ‘deranged’ by commentators).
But what can we say about it from the outside? Can the case teach us anything about how courts might treat appropriation art in other jurisdictions? Could artistic practice ever shift as the result of judicial decisions like this one?
Obviously we must tread carefully when covering the topic of fair use, as it is particular to the US legal system. Other countries may have enumerated copyright exceptions for quotation, news reporting and the like, but nothing as open-ended and judicially-driven as fair use. Some countries, like the UK, Canada, India, Australia, New Zealand and South Africa have the distant cousin of ‘fair dealing’, but this is circumscribed by the purposes for which it can be used (traditionally for research, private study, criticism, review, news reporting and education, though others have been added by legislation in some places).
The majority opinion in Warhol Foundation v. Goldsmith was narrowly focused, looking only at the first of the four fair use factors found at §107 of the US Copyright Act (‘the purpose and character of the use’) and concluding that the manner in which the Foundation had licensed the work in question by Warhol (‘Orange Prince’) was too similar to the use employed by Goldsmith, namely licensing the work to magazines (see image from case below). The finding therefore weighed against the Foundation’s fair use argument. The majority found support for its conclusions in important precedents like Harper & Row v. Nation Enterprises (1985) and Campbell v. Acuff Music (1994), as well as in the language of the Copyright Act and the United States Constitution, which speaks of the purpose of copyright being to ‘Promote the Progress of Science and useful Arts…’ (Art. I §8, cl. 8).
From an outsider’s perspective, what is interesting is that nowhere within the Justices’ considered opinions, totalling some 87 pages, was there a single reference to an international copyright treaty like the Berne Convention for the Protection of Literary and Artistic Works – an instrument familiar to copyright practitioners the world over. This might be as expected: US courts tend to prefer home-grown authority, especially if rooted in their own Constitution, with a seeming disinterest in (or distrust of?) standards or principles derived from international conventions. And of course the Berne Convention would not have a direct legal bearing on the case at hand. But the wisdom behind such a silent disregard might be called into question.
The Convention can be a useful tool to situate the debate around copyright exceptions like fair use. A recognition would also reflect that the US is indeed party to the Convention, along with 180 other countries, and thus is in principle compliant with its rules. The debate taking place around appropriation art is hardly unique to the US. In countries everywhere, artists, musicians and videographers are pushing the limits of what is allowed when using pre-existing material in their creative works.
Let us consider the core of the majority’s opinion in Warhol Foundation v. Goldsmith, which was the similarity of use between licensing by the Foundation and by Goldsmith. In many ways this is indicative of Article 9(2) of the Berne Convention. Article 9(2) sets the parameters by which countries can limit the rights of copyright owners in their domestic law. This includes notably that such copyright exceptions must ‘not conflict with a normal exploitation of the work’. And what constitutes the ‘normal exploitation’ in the case of a professional photograph? It is in most cases the ability to license that work for use in publications. It might therefore have been useful for the US Supreme Court to measure the first fair use factor against this universally-recognised standard, or at least to have mentioned it. In fact, a consideration of the fair use doctrine as a whole against Article 9(2) of Berne might be a worthwhile undertaking. But we’ll leave that for another day.
We can also consider how a decision such as Warhol Foundation v. Goldsmith might be considered under a different domestic legal system. Let us turn to the UK’s principle of ‘fair dealing’. Despite the obvious differences between fair use and fair dealing, certain similarities do exist. For instance, any analysis in the UK under fair dealing will involve an assessment of whether the use is in ‘commercial competition’ with the rightholder (see Ashdown v Telegraph Group [2001] EWCA Civ 1142 at para 20). This seems to be very similar to what was highlighted by the majority in Warhol Foundation v. Goldsmith, namely the direct competition between the Foundation and Goldsmith’s uses for the work.
Going further, we can ask whether artistic practices like those of Warhol might be protected under UK fair dealing more broadly, beyond the narrow licensing question. We might consider Warhol’s use of Goldsmith’s photo across his entire Prince series, not merely the licensed ‘Orange Prince’ work. Seeing Goldsmith’s head of Prince lined up very similarly across the 16 silkscreen works might prompt one to consider Warhol’s use to be an infringement (see comparative images below).
But let us not forget one particular purpose under UK fair dealing, that of ‘caricature’ (s 30A, CDPA). This is not a frequently used – or discussed – part of the exception, and since it was introduced into UK law in 2014 it does not appear to have been considered by the courts. In fact, it is something of a Cinderella: introduced alongside ‘parody’ and ‘pastiche’, these two other purposes are the step-sisters recently taken to the judicial ball (this happened recently in the case of Shazam v Only Fools The Dining Experience [2022] EWHC 1379 ). While the definition of ‘parody’ usually requires an element of humour or mockery and the definition of ‘pastiche’ usually involves the use of multiple works (as in a mashup or a collage), ‘caricature’ does not appear to be subject to such limitations. While no definition for caricature can be found in s 30A of the UK’s CDPA, the Intellectual Property Office (IPO) has suggested one in its 2014 guidance: namely that caricature ‘portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment’.
The kind of artistic use Warhol has made of the Prince photograph might fall rather neatly within that category. Though of course the use would still have to be assessed for its ‘fairness’ (which would include a consideration of the commercial competition point mentioned above). The interesting thing about the IPO definition of caricature is that the targeted ‘subject’ could be the person featured in the original work, rather than the author themselves. It can also be done ‘solely for entertainment’ which seems to be rather elastic – most artistic renderings can probably qualify as entertainment to at least someone.
And so we have a brief view of Warhol Foundation v. Goldsmith from the outside. Yes, a greater recognition by the US Supreme Court of the global parameters around copyright exceptions would have been welcome. And, as we have seen, even under a different system of law – that of the UK – there is a fairly good chance that a similar result could have been reached. That said, a full analysis of Warhol’s entire Prince series, never undertaken by the US Supreme Court, could have triggered an interesting discussion had it arisen in the UK around the issue of ‘caricature’ and how far this untested purpose might extend.
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