Misreading Campbell: Lessons for Warhol
Duke Law Journal Online, Vol. 72, forthcoming 2023
30 Pages Posted: 11 Nov 2022 Last revised: 17 Nov 2022
Date Written: November 1, 2022
In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent which introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as part of the fair use doctrine and rendered compatible with copyright’s right to prepare derivative works. In this Essay, we argue that the answer to these questions lies in Campbell’s logic and careful analysis, where Justice Souter methodically and meticulously incorporated the idea of transformativeness into a rich understanding of the first fair use factor and the overall four-factor framework as a whole. As we show, Campbell paid special attention to concerns with the workability of this idea, and its integration with the copyright scheme developed by Congress in the Copyright Act of 1976. The Court in AWF would benefit from a close reading of Campbell, which presciently foreshadowed and thoughtfully addressed the very questions before it today.
Keywords: Copyright, fair use, transformative use
JEL Classification: K11
Suggested Citation: Suggested Citation