Transforming Fair Use

In the United States, the fate of fair use, and by extension, copyright itself, hang in the balance. In recent years, courts have disagreed over fair use’s proper scope. On the one side are appellate decisions that interpret fair use broadly. While these decisions do not go so far as to suggest that every reuse is fair, they typically use the talismanic phrase “transformative use” and give it a generous and flexible interpretation. On the other side are appellate decisions that interpret fair use restrictively. While again they do not go so far as to suggest no reuse is fair, they typically either reject the transformative use rubric outright or give it a miserly construction. <br><br>In Andy Warhol Foundation v. Goldsmith, the Court largely sided with the courts that favored a narrow and restrictive view of transformative use specifically and fair use more generally. In reaching its conclusion, the Court used a variety of interpretative approaches: realism, textualism, and purposivism. This article critically re-examines each of these interpretative approaches and demonstrates that none support the Court’s reasoning and outcome. <br><br>While courts are bound by the Court’s Goldsmith decision, it is a judicial decision, not legislation. Courts should treat it as such. Each of the Court’s statements on various issue should not be treated as independently binding, but as a reflection of a unified whole, tied to the specific facts of the Goldsmith case. In particular, courts should confine the decision’s application to other instances where a commercial use that was previously licensed is now claimed as a fair use. Wendy Gordon has previously suggested that where licensing is very likely to fail, fair use should be more readily found. Goldsmith represents the opposite side of the coin: Where licensing of a commercial use is very likely to succeed, and indeed, where the copyright owner has previously licensed the precise use at issue, a court should tend to find infringement to reinforce the licensing market in place.