Misreading Campbell: Lessons for Warhol

Article Source: Duke Law Journal Online, Vol. 72, February 2023 (forthcoming)
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Rereading the case in which the Supreme Court first recognized transformative fair use could help the Supreme Court resolve tension between derivative rights and transformative fair use in Andy Warhol Foundation v. Goldsmith.


Policy Relevance:

Tailored remedies can avoid a chilling effect on free speech in close cases.


Key Takeaways:
  • In deciding Andy Warhol Foundation v. Goldsmith, the Supreme Court should revisit Campbell v. Acuff-Rose Music, Inc., which introduced the concept of transformative fair use.
  • Campbell describes a transformative fair use as adding something new, with a further purpose, altering the original’s meaning.
    • Copyright law grants copyright owners the exclusive right to make derivative works in which the original is “transformed.”
    • The original artist’s statutory right to make derivative works and the right of other artists to make transformative uses are in tension.
  • In Andy Warhol Foundation, artist Andy Warhol altered a photograph of Prince taken by photographer Lynn Goldsmith, creating sixteen new works in violation of the original license.
  • Many courts have applied the “transformative use” idea from Campbell in a simplistic way, disregarding the sophisticated approach Justice Souter took in Campbell.
  • The Copyright Act, which leaves a significant role to the courts in deciding details of law and policy, is a “common law statute;” Justice Souter’s opinion in Campbellpays careful attention to the language of the Copyright Act, and is not a free-wheeling exercise in policy-making.
  • Campbell posits that transformation is a matter of degree; when a new work is more transformative, factors that weigh against finding fair use (such as whether the new work has a commercial purpose) are less significant.
  • When the second artist uses an original work in a way that does not fit in an established category, such as parody, Campbell places the burden of proof on the defendant to show that the use is sufficiently transformative.
  • Judges might tilt in favor of finding fair use to avoid the chilling effect on free speech of enjoining the second artist’s activity; Campbell reminds judges that their discretion to award damages rather than an injunction can minimize the chill on free speech in close cases.
    • Cases involving transformative fair use will invariably be close cases.
    • The Andy Warhol Foundation Court should award Goldsmith damages, not a broad injunction.
  • Campbell helps distinguish infringing derivative works from works that are derivative and a transformative fair use; the purpose that makes the work derivative must be separable from the purpose that makes it a fair use.
    • A rap music derivative of an original song is merely derivative, but if the purpose of the derivative is parody, this second purpose makes it a transformative fair use.
    • If the second purpose results in a minimal transformation, the work will also be considered an infringing derivative work.
  • Under Campbell, a second artist who is not commenting on the original work bears a heavier burden of showing his transformation is sufficient when there are alternatives to using that specific original.



Peter Menell

About Peter Menell

Peter S. Menell is the Koret Professor of Law at the University of California, Berkeley School of Law. He has written extensively on intellectual property, cyberlaw, and environmental law, and has examined economic aspects of intellectual property and environmental regulation.

Shyamkrishna Balganesh

About Shyamkrishna Balganesh

Shyamkrishna Balganesh is the Sol Goldman Professor of Law at Columbia University Law School. He writes and teaches in the areas of copyright law, intellectual property, and legal theory. He has written extensively on understanding how intellectual property and innovation policy can benefit from the use of ideas, concepts, and structures from different areas of the common law, especially private law.

See more with Shyamkrishna Balganesh