The Supreme Court decision in Andy Warhol Foundation v. Goldsmith changed the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell v. Acuff-Rose Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether “the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,]. . . in other words, whether and to what extent the new work is transformative.” This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus was on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use.
The importance of transformativeness all changed with this opinion. The fact that the second work conveys a different meaning or message from the first work, without more, is not dispositive. Now the focus of the first fair use factor, the purpose, and character of the use, has shifted from a context-based analysis to a purpose-based analysis. The first fair use factor will now analyze whether the purpose of the use of the second work is different enough from the first to reasonably justify copying.
A group of prominent documentary filmmakers, including the makers of the Last Days of Vietnam, The Invisible War, Won’t You Be My Neighbor, and RBG, filed an amicus brief in Warhol and claimed that the 2nd Circuit’s proposed change in the way fair use is analyzed “could devastate the documentary film genre.” It’s true that this opinion is bound to have an impact on documentarians who rely on the use of unlicensed third-party material as part of conveying the story, but it’s not clear that the impact goes as far as devastation.
Documentarians frequently use third-party footage in order to comment on or critique the footage itself. Section 107 of the Copyright Act provides that “the fair use of a copyrighted work, including such use… for purposes such as criticism [and] comment…. is not an infringement of copyright.” In the oral argument in Warhol, both Goldsmith and the US government agreed that “commenting on the original [work], criticizing it, or otherwise shedding light on the original [work]” is “the most straightforward way to establish fair use.” In its opinion, the Supreme Court reasoned that where the use is for commentary or criticism, copying of the first work “may be justified because copying is reasonably necessary to achieve the user’s new purpose. Also, the court observed that “[c]riticism of a work…ordinarily does not supersede the objects of, or supplant, the work. Rather, it uses the work to serve a distinct end.”
But what about uses that are not for the purpose of criticism or commentary but for a biographical purpose? Would such uses reasonably justify the use of the underlying material?
Take, for instance, the copyright infringement case filed by the rights holder to the Ed Sullivan Show against the producers of the Broadway hit Jersey Boys in Sofa Entertainment v. Dodger Productions. In that case, Sofa Entertainment took issue with a segment in the play where one of the band members speaks to the audience directly about how the band was coming of age during the British Invasion, and as he speaks, the audience is shown a clip of The Ed Sullivan Show where Sullivan introduces the band after which the stage actors perform.
In Sofa, the 9th Circuit said that “using it as a biographical anchor, [the Producers] put the clip to its own transformative ends“ and that being “selected by Ed Sullivan to perform on his show was evidence of the band’s enduring prominence in American music.” The 9th Circuit’s analysis of the purpose of the use of the clip was contextual. Had the 9th Circuit engaged in a purpose-based analysis, this factor may have favored the plaintiff given that there is a strong argument the purpose of both uses is extremely close – the original being to introduce the band and the purpose of the second use being to show the introduction of the band on the Ed Sullivan Show.
Prior to the Supreme Court’s decision in Warhol, it was well established that the use of third-party content to serve as a biographical anchor is fair use. It’s not so clear that will always be the case in light of Warhol. While a different contextual purpose will be relevant, it is no longer dispositive. Further, it may be challenging to determine when the first factor would favor copying since the determination of whether the second use shares the purpose or character of the original work or instead has a further purpose or different character is a matter of degree, and that degree of difference must be balanced against the commercial nature of the use. There is scant little case law to provide guidance.
The Warhol court focused significantly on balancing the first fair use factor against the copyright owner’s right to create derivative works. The Court said that “Campbell cannot be read to mean that [the first fair use factor] weighs in favor of any use that adds new expression, meaning, or message. Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works….” Perhaps the extent to which a secondary work could or could not be considered a derivative of the first is part of the measurement of the degree to which the second work has or doesn’t have a further purpose or different character.
In light of the refocusing of the first fair use factor, the remaining fair use factors take on renewed importance and will require deeper inquiry post-Warhol. So what might this look like for a documentarian who uses a third-party clip as a documentary anchor? Some guidance may be found in Sofa Entertainment. Where the clip used conveys mainly factual information, the second factor – the nature of the copyrighted work – will favor the documentarian since factual information is not as close to the core of intended copyright protection. As for the third factor – the amount and substantiality of the portion used – if the clip is used in short (in Sofa, it was seven seconds), then its use may be “quantitatively insignificant.”
But what about the fourth factor, market harm? Generally, a documentary that uses a clip will not be a market substitute for the clip’s source. However, what if the plaintiff actively licensed its content for a fee? In Bill Graham Archives v Dorling Kindersley, the court said that the market harm suffered due to the loss of license fees was not sufficient to sway the fourth factor where the use of the images was [contextually] transformative. However, in Warhol, the Court of Appeals found that the Warhol Foundation’s commercial licensing of its image “encroached on Goldsmith’s protected market to license her photograph.” Given the shift in how the first fair use factor is analyzed, even if the purpose of the use is different, in a situation where the plaintiff licensed its content, would the use be different enough to reasonably justify a copying? While Warhol does not seem to impact a documentarian’s ability to use third-party content for criticism and commentary, Warhol seems to complicate the ability of a documentarian to use third-party content for biographical purposes. This uncertainty isn’t good for documentarians or the consuming public that enjoys compelling documentaries.