A hallmark of documentary films is the use of preexisting material incorporated by filmmakers to tell their story. For instance, Michael Moore’s Fahrenheit 9/11 uses video clips and images of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon that were captured by media companies and others. Under normal circumstances, such preexisting material is often copyrighted and requires a license to use; without one, the copyright owner may sue for infringement. Securing a license could be costly, or the owner could refuse to issue a license for personal reasons. So how are documentary filmmakers nonetheless able to use preexisting copyrighted material if they are not able to secure licenses?
Relying on the fair use doctrine, a well-established defense to copyright infringement pursuant to the Copyright Act of 1976, documentary filmmakers may incorporate such preexisting third-party materials into their projects without securing licenses. This practice aligns with US Supreme Court precedent, which has long recognized that a secondary work that is “transformative”—meaning that it adds something new—with a further purpose or different character than the original, may fall under the fair use doctrine.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a fair use case currently before the US Supreme Court, reexamines this practice. In this article, we summarize the background of the case and examine its potential impact on documentary filmmakers.
In 1981, photographer Lynn Goldsmith captured a portrait of the late music artist Prince. In 1984, she licensed the photograph to Vanity Fair magazine for use as an artist reference. Vanity Fair then commissioned Andy Warhol to create an image based on Goldsmith’s photograph. Warhol’s illustration was published in the publication’s 1984 issue and included a credit to Goldsmith. Unbeknownst to Goldsmith, Warhol created an additional 15 variants based on the photograph which, together with Vanity Fair’s image, became known as the Prince Series.
Upon Prince’s death in 2016, Vanity Fair published a commemorative magazine with one of the images from the Prince Series —the Orange Prince—as the cover page. That image was different from the one used on the 1984 issue, and it was solely attributed to Andy Warhol Foundation (AWF), without any credit to Goldsmith. Goldsmith notified AWF that the Prince Series, including the image on the 2016 Vanity Fair cover, infringed her copyright. AWF brought suit seeking a declaratory judgment that Warhol’s use of Goldsmith’s photograph constituted “fair use” and Goldsmith counter-sued for copyright infringement.
The District Court’s Decision and the Second Circuit’s Reversal
At first instance, a Federal District Court in New York granted summary judgment to AWF on its fair use claim and dismissed Goldsmith’s counterclaim. Significantly, it held that Warhol had transformed Goldsmith’s original photograph to express a change of Prince “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.”
The Second Circuit Court of Appeals reversed the judgment, holding that in evaluating whether the work was transformative, the role of the judge was to “examine whether the secondary work’s use of its source material is in service of a fundamentally different and new artistic purpose and character, such that the secondary work stands apart from the raw material used to create it.”1 In doing so, “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.”
Comparing the Goldsmith photograph and the Prince Series side-by-side, the Second Circuit concluded that the latter was not “transformative” based on a few factors. First, the purpose of both works was identical: they were both works of visual art and portrayed the same person. Second, while Warhol removed certain elements from Goldsmith’s photograph such as depth and contrast, the Prince Series “retain[ed] the essential elements…without significantly adding to or altering” them. Finally, the Court noted that the distinctiveness of Warhol’s work could not bear on whether it qualified as fair use. Consideration of such an argument would lead to a “celebrity-plagiarist privilege,” whereby the more established an artist was, the greater leeway they would have to potentially infringe the copyrighted work of others.
Appeal to the US Supreme Court
AWF appealed to the US Supreme Court, which heard arguments on October 12, 2022. AWF’s principal arguments were twofold. First, the Prince Series qualified for the fair use defense because Warhol’s work conveyed a “fundamentally different meaning or message” from Goldsmith’s photograph, namely the “dehumanizing effects of celebrity as applied to Prince.” Second, a holding in favor of AWF would be aligned with the objectives of copyright law, which is to promote creativity for the public good. To the contrary, a holding that the Prince Series infringed on Goldsmith’s photograph would have wide-ranging implications for countless works of contemporary art. Not only would museums and galleries be prohibited from displaying such works, but it would stifle artistic creation, since today’s young artists—whose median annual income is less than $50,000— would be disincentivized from creating new works that integrate pre-existing images at the risk of having to face expensive lawsuits.
Goldsmith—alongside the Department of Justice and the Solicitor General (who are entitled to participate in oral arguments before the Supreme Court)— argued that AWF never provided any reason for Warhol’s copying of Goldsmith’s photograph to commercially license Orange Prince. While Warhol may be a creative genius with a distinctive style, so were Steven Spielberg and Jimi Hendrix, but they still acquired licenses for producing films and music. Goldsmith further added that the Prince Series directly competes with the original photograph and thus usurps the market for the original. Unlike Warhol’s depictions of Campbell’s soup cans—which did not compete with Campbell’s soup because the former were presented in art galleries while the latter were sold in supermarkets—the Prince Series serves the same commercial purpose as the original: namely, as visual art accompanying magazine articles about the life of Prince.
Some of the Supreme Court Justices seemed to share Goldsmith’s concerns. Justices Sotomayor and Kavanaugh noted that Orange Prince had a “highly commercial use” and engaged in direct competition with the Goldsmith photograph because just like Goldsmith had done with her original photograph, AWF had also licensed it to a magazine to be published in an article about Prince, not about Warhol.
Furthermore, the Justices questioned the degree of transformativeness that a new work should have in order to claim fair use. Justice Roberts remarked that with the use of modern technology, Goldsmith’s photograph could likely be manipulated to put a smile on Prince’s face, which could, arguably, give the photograph a new meaning or message— that of a happy Prince. If this act could be considered fair use in creating a new work, there might be nothing left to the original creator to give them the ability to produce derivative works, as expressly permitted by the Copyright Act.
Potential Impact on Documentary Filmmakers?
Assuming that the Supreme Court rules in favor of Goldsmith, the test for determining when the unlicensed reproduction of another’s work counts as fair use could narrow against artists. But what would be the implications for documentary filmmakers? During oral argument, AWF cautioned that a holding in favor of Goldsmith “would have dramatic spillover consequences” for all works of art that incorporate preexisting images to generate new works. Documentary filmmakers often engage in a similar practice by using pre-existing, copyrighted material in their work.
In an amicus brief filed by 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), they claim that the Second Circuit’s ruling against fair use “could devastate the documentary film genre” because creators would not be able to safely rely on the fair use doctrine to justify their use of preexisting, copyrighted material. Further, obtaining a license for the use of such material would often be impracticable (e.g. due to unreasonable prices set by creators) or impossible (e.g. when a creator disagrees with the point of view of the documentary filmmaker). Documentary filmmakers are also concerned that many documentaries would fail the Second Circuit’s “side-by-side” comparison test, where copyrighted excerpts are clearly recognizable, and the documentary does not comment on them but utilizes them to provide viewers with historical, cultural or social context.
During oral argument, Justice Jackson analogized a creator’s copyright in their work as a “property interest”
and questioned whether a creator who witnesses someone else using their work can say, “Why are you using my thing to do your work?” If copyrighted works are seen as traditional property interests, then filmmakers could face challenging implications for documentaries that, depending on the sub-genre of the form, often utilize preexisting copyrighted works.
Despite the above, due to key differences between Warhol’s Prince Series and the very nature of documentaries, it is uncertain whether an adverse ruling to AWF may severely complicate fair use practices, as documentary filmmakers suggest in their amicus brief.
First and foremost, the purpose of a documentary is frequently different than that of the preexisting third-party material used, since a documentary typically intends to comment or critique the original material. The very language of the Copyright Act states that criticism or comment of copyrighted work would not constitute infringement if it is “fair.” During oral argument, both Goldsmith and the US government conceded that “the most straightforward way to establish fair use” is if the new work is “commenting on the original, criticizing it, or otherwise shedding light on the original.” Unlike Warhol’s Prince Series, which might not appear to be commenting on or criticizing Goldsmith’s photograph, documentaries can and often do comment on, criticize and “shed light” on the underlying material used.
Moreover, unlike the Prince Series, which according to Justice Kavanaugh may “pose an existential threat to photographers,” no similar concerns appear to surround documentaries. Documentaries do not usurp the market for the preexisting material they depict. Though they may feature clips of news reels, interviews or video snippets, they typically do not portray breaking news or current events as they are unfolding. Instead, they consolidate such material from the past and provide context or commentary. For example, the documentary Maria by Callas, which focuses on the life of famed opera singer Maria Callas, uses old interviews and performance clips taken while she was alive. The documentary itself does not compete with any of the preexisting material, as this material serves a fundamentally different purpose: Callas’ live performances of operas were taken and sold to opera lovers that had an interest in the opera in question and/or Callas’ portrayal of a certain role. By comparison, snippets of such performances were used in the documentary to comment on Callas’ life and artistry, and portray Callas’ transformation throughout her life.
Finally, the statutory text of the Copyright Act takes into account whether the use of the new work “is of commercial nature or for nonprofit educational purposes.” Regardless of whether it is commercial or not, documentaries have an intrinsic educational value and therefore serve the public interest. This factor further favors fair use.
The ultimate fate of the fair use defense for documentary filmmakers may depend on whether or not the Supreme Court distinguishes Warhol’s Prince Series from other works that have traditionally benefited from the fair use doctrine, including documentaries.
Having said that, even assuming that the substantive legal rights of documentary filmmakers do not substantially change, an adverse ruling towards AWF complicates the question of whether the fair use defense can continue to support the broad use of third-party materials. An increased threat of litigation by itself may be enough to drive up insurance costs, instill anxiety to filmmakers, and stifle creation. To that end, documentary filmmakers may still find themselves on the losing end.
Steven Beer is a partner at the law firm Lewis Brisbois, where he serves as a chair of the national Entertainment, Media and Sports Practice.
Ariadne Panagopoulou is a partner at Lewis Brisbois and a member of the Complex Business & Commercial Litigation, Labor & Employment, and London Market Group Practices.
Robert Maslonka is a law clerk within Lewis Brisbois’ Entertainment, Media and Sports Practice, and a 3L Fordham Law student concentrating on entertainment and intellectual property matters.