Article by Michael W. Carroll & Peter Jaszi
In two recent cases, Google LLC v. Oracle America, Inc. (Google v. Oracle) and Andy Warhol Foundation for the Visual Arts v. Goldsmith (Warhol), the United States Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law's fair use provision. In doing so, the Court withstood significant pressure from industry participants in these cases to change course. This Article argues that the Court's decisions, which represent one-third of the Court's total merits decisions on fair use, are historic. The principal contribution of this Article is to demonstrate to courts and parties in future fair use disputes how the holdings in these cases readily synthesize to provide useful guidance that will be relevant, for example, in disputes about generative artificial intelligence. This Article disagrees with those who argue that Warhol represents a retreat from transformativeness, demonstrating instead that the Court in Warhol simply rejected a caricatured version of this form of analysis.
This Article also makes an original argument that shows how these two cases reflect the hard-won triumph of three big ideas that were hotly contested in the evolution of the fair use doctrine. First, this Article summarizes how courts gradually came to agree that fair use was distinct from the question of substantial similarity in infringement analysis, a conclusion confirmed in the Copyright Act of 1976. Second, this Article summarizes how legislators concluded that fair use should be codified, rather than left as a judicially implied limit on exclusive rights, as some had argued. In doing so, this Article credits Barbara Ringer, the United States Copyright Office's point person in the legislative process, as the primary draftsperson of the core of codified fair use in 17 U.S.C. § 107. Finally, this Article shows how codification facilitated increased Supreme Court review of fair use disputes, which led the Court to adjudicate fair use issues in four cases decided within a single decade, culminating in its adoption of transformative use.
About the Author
Michael W. Carroll. Professor of Law and Faculty Co-Director, Program on Information Justice and Intellectual Property, American University Washington College of Law.
Peter Jaszi. Emeritus Professor of Law, American University Washington College of Law.
Citation
99 Tul. L. Rev. 453