No. 21-869
`
`IN THE
`
`_________
`THE ANDY WARHOL FOUNDATION FOR THE
`VISUAL ARTS, INC.,
`
`Petitioner,
`
`v.
`LYNN GOLDSMITH AND LYNN GOLDSMITH, LTD.,
`Respondents.
`
`________
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Second Circuit
`________
`BRIEF FOR THE COPYRIGHT ALLIANCE AS
`AMICUS CURIAE IN SUPPORT OF
`NEITHER PARTY
`________
`
`SUSAN J. KOHLMANN
`Counsel of Record
`JACOB L. TRACER
`ISABEL F. FARHI
`JENNER & BLOCK LLP
`1155 Avenue of the Americas
`New York, N.Y. 10036-2711
`(212) 891-1600
`SKohlmann@jenner.com
`
`Counsel for Amicus Curiae
`
`
`
`IN THE
`
`_________
`THE ANDY WARHOL FOUNDATION FOR THE
`VISUAL ARTS, INC.,
`
`Petitioner,
`
`v.
`LYNN GOLDSMITH AND LYNN GOLDSMITH, LTD.,
`Respondents.
`
`________
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Second Circuit
`________
`BRIEF FOR THE COPYRIGHT ALLIANCE AS
`AMICUS CURIAE IN SUPPORT OF
`NEITHER PARTY
`________
`
`SUSAN J. KOHLMANN
`Counsel of Record
`JACOB L. TRACER
`ISABEL F. FARHI
`JENNER & BLOCK LLP
`1155 Avenue of the Americas
`New York, N.Y. 10036-2711
`(212) 891-1600
`SKohlmann@jenner.com
`
`Counsel for Amicus Curiae
`
`
`
`II.
`
`i
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ......................................... iii
`STATEMENT OF
`IDENTITY AND
`INTEREST OF AMICUS CURIAE.................. 1
`SUMMARY OF ARGUMENT ........................................ 4
`ARGUMENT ...................................................................... 7
`I.
`A Copyright Owner’s Exclusive Right
`To Control Derivative Works Should
`Not Be Undermined By A User’s
`Ability To Invoke A “Transformative
`Use.” ......................................................................... 7
`Petitioner Argues For An Overbroad
`Test That Would Nullify The
`Derivative Work Right. ....................................... 11
`A.
`The First Fair Use Factor
`Requires Consideration Of
`Whether A Secondary Use Has
`A Further Purpose Or Different
`Character. .................................................. 11
`Petitioner’s Test Would Upend
`Existing And New Creative
`Industries................................................... 15
`III. A Workable Transformative Use Test
`Should Be Fully Consistent With The
`Language And Purpose Of The
`Copyright Act. ...................................................... 22
`
`B.
`
`
`
`B.
`
`C.
`
`ii
`A. Where The Derivative Use
`Right And Transformative Use
`Tests Overlap, The Derivative
`Work Right Must Retain
`Primacy. ..................................................... 22
`Courts Must Consider Both The
`Purpose And The Character Of
`The Secondary Use. ................................. 23
`1.
`A
`Transformative
`Purpose
`Should
`Be
`Closely Tied To The
`Purposes Listed In The
`Preamble To Section 107. ............ 23
`A
`Transformative
`Character
`Cannot
`Supersede The Original. .............. 28
`Courts Should Resolve
`Transformative Use On A
`Sliding Scale Of Purpose
`And Character. ............................. 30
`Analysis
`Of
`A
`The
`Transformative Purpose And
`Character Cannot Rely On
`Subjective Assessments. ......................... 30
`The
`Transformative
`Use
`Analysis Cannot Replace The
`Fourth Factor. .......................................... 32
`CONCLUSION ................................................................ 32
`
`D.
`
`2.
`
`3.
`
`
`
`iii
`TABLE OF AUTHORITIES
`
`CASES
`American Society for Testing & Materials
`v. Public.Resource.Org, Inc., 896 F.3d
`437 (D.C. Cir. 2018) ................................................. 13
`Antioch Co. v. Scrapbook Borders, Inc., 291
`F. Supp. 2d 980 (D. Minn. 2003) ............................ 13
`Authors Guild v. Google, Inc., 804 F.3d 202
`(2d Cir. 2015) ..................................................... 24, 28
`A.V. ex rel. Vanderhye v. iParadigms, LLC,
`562 F.3d 630 (4th Cir. 2009) ................................... 13
`Balsley v. LFP, Inc., 691 F.3d 747 (6th Cir.
`2012) .......................................................................... 13
`Bleistein v. Donaldson Lithographing Co.,
`188 U.S. 239 (1903) .................................................. 31
`Brownmark Films, LLC v. Comedy
`Partners, 682 F.3d 687 (7th Cir. 2012) ................. 13
`Campbell v. Acuff-Rose Music, Inc., 510
`U.S. 569 (1994) ...................... 4, 6, 8, 9, 10, 11, 12, 16,
`23, 24, 25, 26, 28, 29, 31
`Cariou v. Prince, 714 F.3d 694 (2d Cir.
`2013) .................................................................... 25, 26
`Castillo v. G&M Realty L.P., 950 F.3d 155
`(2d Cir.), cert. denied, 141 S. Ct. 363
`(2020) ........................................................................ 32
`Dr. Seuss Enterprises, L.P. v. ComicMix
`LLC, 983 F.3d 443 (9th Cir. 2020), cert.
`denied, 141 S. Ct. 2803 (2021) ............... 12-13, 18, 26
`
`
`
`iv
`Folsom v. Marsh, 9 F. Cas. 342 (C.C.D.
`Mass. 1841) ............................................................... 29
`Fox News Network, LLC v. Tveyes, Inc., 883
`F.3d 169 (2d Cir. 2018) ..................................... 15, 28
`Gaylord v. United States, 595 F.3d 1364
`(Fed. Cir. 2010) ........................................................ 13
`Google LLC v. Oracle America, Inc., 141 S.
`Ct. 1183 (2021) ................................................... 13, 14
`Harper & Row Publishers, Inc. v. Nation
`Enterprises, 471 U.S. 539 (1985) ................ 22, 23-24
`Hill v. Public Advocate of the United States,
`35 F. Supp. 3d 1347 (D. Colo. 2014) ...................... 13
`Kienitz v. Sconnie Nation LLC, 766 F.3d
`756 (7th Cir. 2014) ........................................ 10-11, 24
`MidlevelU, Inc. v. ACI Information Group,
`989 F.3d 1205 (11th Cir.), cert. denied,
`141 S. Ct. 2863 (2021) .............................................. 12
`Monge v. Maya Magazines, Inc., 688 F.3d
`1164 (9th Cir. 2012) ................................................. 24
`Monsarrat v. Newman, 28 F.4th 314 (1st
`Cir. 2022) .................................................................. 12
`Murphy v. Millennium Radio Grp. LLC,
`650 F.3d 295 (3d Cir. 2011) .................................... 13
`Paramount Pictures Corp. v. Carol
`Publishing Group, 11 F. Supp. 2d 329
`(S.D.N.Y. 1998), aff’d, 181 F.3d 83 (2d
`Cir. 1999) .................................................................. 18
`
`
`
`v
`Penguin Random House LLC v. Colting,
`270 F. Supp. 3d 736 (S.D.N.Y. 2017) .................... 18
`Roberts v. Sea-Land Services, Inc., 566 U.S.
`93 (2012) ..................................................................... 8
`Rogers v. Koons, 960 F.2d 301 (2d Cir.
`1992) .......................................................................... 30
`Salinger v. Colting, 607 F.3d 68 (2d Cir.
`2010) .................................................................... 27, 31
`Salinger v. Colting, 641 F. Supp. 2d 250
`(S.D.N.Y. 2009), vacated, 607 F.3d 68 (2d
`Cir. 2010) .................................................................. 27
`Seltzer v. Green Day, Inc., 725 F.3d 1170
`(9th Cir. 2013) .......................................................... 26
`Sony Corp. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) .................................................. 28
`Suntrust Bank v. Houghton Mifflin Co., 268
`F.3d 1257 (11th Cir. 2001) ...................................... 27
`TCA Television Corp. v. McCollum, 839
`F.3d 168 (2d Cir. 2016) ..................................... 13, 25
`Twin Peaks Productions v. Publications
`International, Ltd., 996 F.2d 1366 (2d
`Cir. 1993) .................................................................. 18
`Veeck v. Southern Building Code Congress
`International, Inc., 293 F.3d 791 (5th
`Cir. 2002) .................................................................. 13
`STATUTES
`17 U.S.C. § 101 ...................................................... 5, 8, 29
`17 U.S.C. § 106 ............................................................ 7, 9
`
`
`
`vi
`17 U.S.C. § 106A ........................................................... 32
`17 U.S.C. § 107 ............................................ 5, 6, 9, 11, 25
`LEGISLATIVE MATERIALS
`H.R. Rep. No. 94-1476 (1976), as reprinted
`in 1976 U.S.C.C.A.N. 5659 ...................................... 9
`H.R. Rep. No. 102-836 (1992), as reprinted
`in, 1992 U.S.C.C.A.N. 2553 .............................. 22-23
`OTHER AUTHORITIES
`Alan Latman, Fair Use of Copyrighted
`Works (1958), reprinted as Study No. 14
`in Copyright Law Revision Studies Nos.
`14–16, prepared
`for
`the Senate
`Committee on the Judiciary, 86th Cong.
`(1960) ........................................................................ 24
`Pierre N. Leval, Toward A Fair Use
`Standard, 103 Harv. L. Rev. 1105 (1990) ............ 10
`Jiarui Liu, An Empirical Study of
`Transformative Use in Copyright Law,
`22 Stan. Tech. L. Rev. 163 (2019) ......................... 15
`4 Nimmer on Copyright § 13.05 (2022) ................ 25, 26
`U.S. Copyright Office Circular No. 56
`(2021) ........................................................................ 18
`Neil Weinstock Netanel, Making Sense of
`Fair Use, 15 Lewis & Clark L. Rev. 715
`(2011) ........................................................................ 15
`
`
`
`1
`STATEMENT OF IDENTITY AND INTEREST
`OF AMICUS CURIAE1
`
`The Copyright Alliance is a non-profit, non-
`partisan, public interest and educational organization
`representing the copyright interests of over two million
`individual creators and 15,000 organizations in the
`United States, across the spectrum of copyright
`disciplines. The Copyright Alliance is dedicated to
`advocating policies that promote and preserve the value
`of copyright and to protecting the rights of creators and
`innovators.
`
`The Copyright Alliance represents individual
`creators including authors, photographers, performers,
`artists, software developers, musicians, journalists,
`directors, songwriters, and many others. In addition,
`the Copyright Alliance represents the interests of book
`and journal publishers, motion picture studios, video
`game publishers, software companies, music publishers,
`sound
`recording
`companies,
`sports
`leagues,
`broadcasters, guilds, unions, newspaper and magazine
`publishers, and many other organizations.
` These
`diverse
`individuals and organizations all rely on
`copyright law to protect their ability to pursue a
`
`1 Pursuant to Supreme Court Rule 37.6, counsel for amicus curiae
`states that no counsel for a party authored this brief in whole or in
`part. No counsel or party made a monetary contribution intended
`to fund the preparation or submission of this brief, and no person
`other than amicus or its counsel made such a contribution. The
`parties have provided written consent to the filing of this amicus
`brief.
`
`
`
`2
`livelihood based on creativity and innovation, and to
`safeguard their investments in their creation and
`dissemination of copyrighted works.
`
`As particularly relevant to this case, the
`Copyright Alliance has individual members who both
`license their preexisting works for use in new works and
`who make fair use of preexisting works. The Copyright
`Alliance also has organizational members that represent
`the interests of individuals who engage in those creative
`endeavors. Copyright Alliance members therefore
`depend on a proper balance between the exclusive
`statutory right to control the creation of derivative
`works and the ability of secondary users to make fair use
`of preexisting works. That balancing requires an
`appropriately circumscribed fair use doctrine that
`furthers the purposes of copyright law, both by
`protecting the rights of copyright owners and by
`promoting the creation of new works.
`
`The Copyright Alliance takes no position on the
`ultimate resolution of Petitioner’s fair use defense, and
`thus submits this brief in support of neither party. The
`question presented in this case asks only whether
`Petitioner’s
`use
`of Respondents’
`copyrighted
`photograph was “transformative,” which implicates just
`one of the four factors courts must balance when
`considering a claim of fair use under Section 107. Thus,
`the question presented can and should be resolved
`without a conclusive determination of whether
`Petitioner’s use qualifies as a fair use. Focusing on this
`narrow question, the Copyright Alliance seeks to
`underscore
`the
`importance of
`interpreting
`the
`
`
`
`3
`Copyright Act in a manner that draws a clear line
`between transformative uses, as that term is used in the
`fair use context, and uses that violate a copyright
`holder’s exclusive right to prepare derivative works
`under Section 106(2). The Copyright Alliance also seeks
`to caution against the increasingly elevated weight
`courts have afforded to transformative use analyses and
`to emphasize the continued importance of the other
`three factors of the fair use test—in particular, the
`fourth factor—that are not directly at issue here.
`
`In answering the question presented, the Court
`should not embrace Petitioner’s position. Petitioner’s
`proposed test for transformative use risks permitting
`anyone who makes a minor alteration to a preexisting
`work to claim that the new work reflects a different
`meaning or message and therefore qualifies as a
`transformative use. Such an outcome would risk
`negating a copyright owner’s exclusive right to control
`the creation of derivative works.
`
`As a practical matter, that result would also harm
`the creative community and stifle the creativity of the
`artists, authors, and other creators that constitute the
`Copyright Alliance’s members. Indeed, expanding the
`scope of fair use, as Petitioner advocates, would permit
`unauthorized use of many works that presently require
`a derivative work license from the copyright owner.
`Many such uses have in fact been licensed for decades.
`The robust existence of such licensing markets is critical
`to ensuring that all creators are incentivized to create
`new, original works of authorship and able to reap the
`full benefit of their work. The Copyright Alliance
`
`
`
`4
`therefore submits this brief to ensure that principles of
`fair use are properly subject to the copyright owner’s
`right to control derivative works in a manner consistent
`with copyright’s goals of incentivizing the creation and
`distribution of works that are vital to our nation’s
`cultural, scientific, and technological progress.
`
`SUMMARY OF ARGUMENT
`
`This case arises at the intersection of a copyright
`owner’s exclusive right to control the creation of
`derivative works found in Section 106 of the Copyright
`Act and the exception to that right that permits a third
`party to use preexisting copyrighted works to make new
`works that qualify as fair use pursuant to Section 107 of
`the Copyright Act. This Court previously considered
`this issue nearly thirty years ago in Campbell v. Acuff-
`Rose Music, Inc., 510 U.S. 569 (1994). There, the Court
`held that a significant inquiry in deciding fair use is
`“whether and to what extent the new work
`is
`‘transformative.’” Id. at 579. Although the word
`“transformative” does not appear anywhere in Section
`107, the question of whether a use of a copyrighted work
`is “transformative” has come to dominate not just the
`fair use factor to which the Court applied it in Campbell,
`but the entire fair use analysis. That trend has reached
`a point where the transformative use inquiry unduly
`encroaches on and engulfs the copyright owner’s
`exclusive right to control the creation of derivative
`works.
` With this case, the Court now has the
`opportunity to clarify and correct the scope and meaning
`of “transformative” and the impact of such a finding on
`
`
`
`5
`the ultimate determination of whether a use constitutes
`fair use under Section 107.
`
`As a threshold matter, elevating the importance
`of the “transformative use” inquiry is contrary to the
`language and purpose of the Copyright Act. Section 106
`of the Copyright Act grants copyright owners the
`exclusive right to control the creation of derivative
`works, including works that are “based upon one or more
`preexisting works” that have been “transform[ed].” 17
`U.S.C. § 101. However, the fair use provision does not
`expressly mention “transformative use” at all. 17 U.S.C.
`§ 107. Thus, interpreting “transformative use” so
`broadly as to encroach on the exclusive right to control
`the creation of derivative works improperly favors a
`judicial interpretation of a statute over that statute’s
`own express language. Such an interpretation risks
`upsetting the economic conditions and right to control
`that incentivize creativity. Indeed, copyright is the
`engine of creativity, as it incentivizes individuals to
`create art by promising them the exclusive right to reap
`the benefits of their work. Properly conceived, the fair
`use exception should function as a limited safety valve to
`prevent copyright law from being so rigidly applied that
`it prevents “criticism, comment, news reporting,
`teaching …, scholarship, or research” and other similar
`uses. 17 U.S.C. § 107. The fair use exception was never
`intended to serve as a broad license to use existing
`works freely whenever the user modifies the existing
`work.
`
`Petitioner’s articulation of what constitutes a
`transformative use would lower the bar so significantly
`
`
`
`6
`that practically any secondary use could clear it. Indeed,
`Petitioner articulates a test that looks only to whether a
`secondary work adds new expression, meaning, or
`message. But that is not, and has never been, the test
`for transformative use: The test requires a subsequent
`use of a preexisting work to have a “further purpose or
`different character” from the original. Campbell, 510
`U.S. at 579. That test is properly derived from the first
`fair use factor, which requires the court to consider “the
`purpose and character of the use.” 17 U.S.C. § 107(1).
`
`By arguing that new expression, meaning, or
`message
`alone
`is
`sufficient
`to
`constitute
`a
`transformative use, Petitioner seeks to disassociate the
`transformative use inquiry from the statute and turn the
`inquiry from a holistic examination of the use at issue
`into a perfunctory examination that nearly any
`secondary user could satisfy. The holistic examination
`of transformative use requires both an inquiry into
`whether the purpose of the use is consistent with those
`set forth in the preamble to Section 107 and whether the
`character of the new work is sufficiently different from
`the original.
`
`Ultimately, the Court should articulate a
`standard for any “transformative use” inquiry that
`incorporates the following principles, all of which are
`grounded in the language and purpose of the Copyright
`Act. First, because the exclusive derivative work right
`is expressly stated in the Copyright Act and fair use is
`an affirmative defense,
`the baseline
`for any
`consideration should be that the secondary use is
`infringing and that the secondary user bears the burden
`
`
`
`7
`to demonstrate that the use qualifies as a fair use under
`Section 107. Second, the language of the first factor in
`Section 107—which requires consideration of both the
`“purpose and character” of the use at issue—must frame
`any consideration of whether a use is “transformative.”
`In light of that language, courts should consider on a
`sliding scale both whether the use was
`for a
`transformative purpose—in other words, whether the
`preexisting work was used for a reason closely tied to
`one of the examples in the preamble of Section 107—and
`whether the character of the use was such that the
`preexisting work was sufficiently altered so that the
`secondary work does not supersede the original. Third,
`this analysis must be done objectively, without
`consideration of the subjective assessments of the artist,
`experts, or the judge. If these principles are followed,
`the test for “transformative use” will be consistent with
`the Copyright Act and will properly balance the
`interests of both copyright owners and secondary users.
`
`ARGUMENT
`
`I.
`
`A Copyright Owner’s Exclusive Right To
`Control Derivative Works Should Not Be
`Undermined By A User’s Ability To Invoke
`A “Transformative Use.”
`
`The Copyright Act expressly grants to copyright
`owners, among other things, the right to “prepare
`derivative works.” 17 U.S.C. § 106(2). This right is
`essential to the creative and economic incentives built
`into copyright law: It permits copyright owners to
`control not just the production and distribution of their
`
`
`
`8
`works but also further uses that might be made of those
`works.
` Thus, copyright owners can decide for
`themselves whether and when to permit their works to
`be published in different forms or media and on what
`creative or economic terms.
`
`Congress expressly defined a derivative work as
`one “based upon one or more preexisting works,” that
`“recast[s], transform[s], or adapt[s]” the original. 17
`U.S.C. § 101 (emphasis added). Later, this Court held
`that when a secondary use of a copyrighted work is
`“transformative,” it is more likely to qualify as a fair use.
`Campbell, 510 U.S. at 579. This language has created a
`conflict that has plagued courts since Campbell: When
`does a new work “transform” a preexisting work (and is
`thus a derivative work requiring authorization from the
`copyright owner), and when is such use of a preexisting
`work “transformative” (and thus more likely to be fair
`use)?
`
`Principles of statutory interpretation make clear
`that wherever the line is drawn, the ability of users to
`claim
`their
`uses
`of
`preexisting works
`are
`“transformative” cannot overwhelm the exclusive right
`granted to copyright owners to control derivative
`works. When interpreting a statute, it is the task of the
`court “to fit, if possible, all parts into an harmonious
`whole,” and, therefore, interpret the section at issue so
`as not to conflict with other provisions. Roberts v. Sea-
`Land Servs., Inc., 566 U.S. 93, 100 (2012) (quoting FTC
`v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). Thus,
`
`
`
`9
`the range of uses that are “transformative” must be
`cabined.2
`
`That the derivative work right should have
`primacy is clear from the origins of the two interests at
`stake. The derivative work statutory language was
`established by Congress and included among core
`exclusive rights under copyright law, alongside the
`rights to reproduce or distribute a copyrighted work. 17
`U.S.C. § 106. In fact, the House Report indicates that
`Congress considered
`the derivative work right
`“fundamental” to enacting the Copyright Act of 1976.
`H.R. Rep. No. 94-1476, at 61 (1976), as reprinted in 1976
`U.S.C.C.A.N. 5659, 5674.
`
`By contrast, the “transformative use” standard is
`not in the Copyright Act. Instead, it was developed by
`courts as a means of interpreting the language of the
`first fair use factor, which states that courts should
`consider “the purpose and character of the use, including
`whether such use is of a commercial nature or is for
`nonprofit educational purposes.” 17 U.S.C. § 107(1).
`When this Court decided Campbell, it introduced the
`“transformative use” inquiry as a frame to analyze that
`factor, drawing the term from a law review article by
`Judge Pierre Leval. 510 U.S. at 579. The Court used
`
`2 While Petitioner summarily claims that a secondary use can both
`be a derivative work and constitute fair use, Pet’r’s Br. at 51–52, the
`test that Petitioner advocates would render enormous numbers of
`derivative works as “transformative.” That outcome would
`effectively nullify the express right of copyright owners to control
`the creation of derivative works.
`
`
`
`10
`this formulation to describe generally the examples of
`appropriate fair use purposes in the preamble of Section
`107, as a way to “look[] to whether the use is for
`criticism, or comment, or news reporting, and the like.”
`Id. at 578–79. The Court concluded that the work at
`issue in Campbell, a parody, “ha[d] an obvious claim to
`transformative value” as a “form[] of criticism.” Id. at
`579. This finding was consistent with Judge Leval’s
`articulation of the first fair use factor. To Judge Leval,
`a use was “transformative” where the secondary work
`was employed “in a different manner or for a different
`purpose” than the original. Pierre N. Leval, Toward A
`Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).
`The transformative use inquiry is, therefore, a means of
`interpreting Section 107 to determine whether the
`secondary work’s purpose and character differs
`sufficiently from the original’s so as not to “‘supersede[]
`the objects’ of the original creation” and thus impinge on
`the copyright owner’s exclusive rights. Campbell, 510
`U.S. at 579 (quoting Folsom v. Marsh, 9 F. Cas. 342, 348
`(C.C.D. Mass. 1841) (Story, J.)).
`
`Because the derivative work right is grounded in
`the express language of the Copyright Act but the
`transformative use
`inquiry derives
`from
`judicial
`interpretation of that Act, the Court should not expand
`its conception of “transformative use” to the point that
`it effectively nullifies the plain language of Sections 101
`and 106 of the statute. Indeed, if the Court permitted
`any transformation of a preexisting work of any kind to
`be “transformative” for the purposes of fair use, it would
`be irreconcilable with the statutory derivative work
`right. See Kienitz v. Sconnie Nation LLC, 766 F.3d 756,
`
`
`
`11
`(“[A]sking
`(Easterbrook, J.)
`(7th Cir. 2014)
`758
`exclusively whether something is ‘transformative’ not
`only replaces the list in § 107 but also could override 17
`U.S.C. § 106(2), which protects derivative works.”). By
`limiting the scope of uses that are considered
`“transformative” so as not to limit the derivative work
`right, the Court can give force to both Sections 106 and
`107 of the Copyright Act.
`
`II.
`
`Petitioner Argues For An Overbroad Test
`That Would Nullify The Derivative Work
`Right.
`
`Petitioner proposes a test that would effectively
`nullify the derivative work right and wreak havoc on the
`creative industries of the Copyright Alliance’s members.
`The Court should reject this test as being contrary to
`decades of settled copyright law and as a sweeping
`policy change that Congress never authorized.
`
`A.
`
`The First Fair Use Factor Requires
`Consideration Of Whether A Secondary
`Use Has A Further Purpose Or
`Different Character.
`
`factor,
`fair use
`first
`When analyzing the
`Campbell directed courts to consider, among other
`things, whether a new work “adds something new, with
`a further purpose or different character, altering the
`first with new expression, meaning, or message.” 510
`U.S. at 579. That standard is based on Section 107, which
`requires consideration of the “purpose and character of
`the use” at issue. 17 U.S.C. § 107. Petitioner would have
`the Court upend this standard and instead embrace a
`
`
`
`12
`test that is untethered to the express language of the
`Copyright Act.
`
`inquiry as
`Indeed, Petitioner presents this
`turning merely on whether the secondary work conveys
`a “difference
`in meaning or message” from the
`preexisting work. Pet’r’s Br. at 36. Petitioner even goes
`so far as to argue that any difference in meaning or
`message “is a difference in ‘purpose.’” Id. at 52.
`
`That test has no foundation in either Section
`107—where the words “meaning” and “message” do not
`appear—or Campbell. In Campbell, the Court did not
`consider only whether the new work conveyed a
`different “meaning or message.” Rather, it considered
`whether the purpose of the new work—parody—was
`sufficient to constitute fair use and whether the new
`work reasonably could be conceived as containing
`parody. See 510 U.S. at 579–83. Consistent with the
`language of Section 107, that analysis looked beyond the
`narrow question of whether the new work contained
`some additional meaning or message not
`in the
`preexisting work.
`
`Unsurprisingly, all of the circuits to consider this
`issue since Campbell have agreed that the test requires
`a consideration of whether the secondary use is of a
`“further purpose or different character,” not merely
`whether it includes a new meaning or message. See
`Monsarrat v. Newman, 28 F.4th 314, 321 (1st Cir. 2022);
`MidlevelU, Inc. v. ACI Info. Grp., 989 F.3d 1205, 1221
`(11th Cir.), cert. denied, 141 S. Ct. 2863 (2021); Dr. Seuss
`Enters., L.P. v. ComicMix LLC, 983 F.3d 443, 452 (9th
`
`
`
`13
`Cir. 2020), cert. denied, 141 S. Ct. 2803 (2021); Am. Soc’y
`for Testing & Materials v. Public.Resource.Org, Inc.,
`896 F.3d 437, 449–51 (D.C. Cir. 2018); TCA Television
`Corp. v. McCollum, 839 F.3d 168, 180 (2d Cir. 2016);
`Balsley v. LFP, Inc., 691 F.3d 747, 758–59 (6th Cir. 2012);
`Brownmark Films, LLC v. Comedy Partners, 682 F.3d
`687, 693 (7th Cir. 2012); Murphy v. Millennium Radio
`Grp. LLC, 650 F.3d 295, 306 (3d Cir. 2011); Gaylord v.
`United States, 595 F.3d 1364, 1372 (Fed. Cir. 2010); A.V.
`ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638
`(4th Cir. 2009); Veeck v. S. Bldg. Code Cong. Int’l, Inc.,
`293 F.3d 791, 823 (5th Cir. 2002); see also Hill v. Pub.
`Advoc. of the United States, 35 F. Supp. 3d 1347, 1358 (D.
`Colo. 2014); Antioch Co. v. Scrapbook Borders, Inc., 291
`F. Supp. 2d 980, 992 (D. Minn. 2003).
`
`Moreover, this Court itself affirmed only last year
`that satisfying the first fair use factor requires a further
`purpose or different character. See Google LLC v.
`Oracle Am., Inc., 141 S. Ct. 1183, 1203 (2021) (examining
`the copying’s “‘purpose[s]’ and ‘character’” (quoting 17
`U.S.C. § 107(1))).
`
`Contrary to Petitioner’s assertion, however,
`Google did not purport to address this inquiry as a
`general matter nor “establish a straightforward rule”
`building on Campbell. Pet’r’s Br. at 36. Instead, as the
`Second Circuit correctly recognized, Google was
`expressly limited to consideration of software. The
`Court took pains to clarify that its opinion did not
`“change[] the nature of” traditional copyright concepts
`nor “overturn or modify … earlier cases involving fair
`use.” 141 S. Ct. at 1208. Rather, because it was “difficult
`
`
`
`14
`to apply traditional copyright concepts in [the software]
`world,” it looked to first principles of fair use and applied
`them to a specific context. Id. at 1208–09. In the
`transformative use analysis, the Court stressed that it
`was taking
`into account “the realities of how
`technological works are created and disseminated.” Id.
`at 1199. It noted that because a broad view of “purpose”
`would prevent some clearly fair uses of software, such as
`teaching, “to stop [at a broad purpose analysis] would
`severely limit the scope of fair use in the functional
`context of computer programs.” Id. at 1203 (emphasis
`added). In that specific context, the Court looked to a
`“more specifically described” purpose and character. Id.
`It further noted that, in the context of computer
`programs, Google’s
`actions
`“can
`further
`the
`development of computer programs” and that such
`copying was “necessary” for the computer programming
`industry to function, and took into account that such
`actions were common in that industry. Id. at 1203–04.
`This context-specific consideration is fitting in the
`special case of software and represents the flexibility the
`fair use analysis affords.
`
`the
`turn
`to
`Thus, Petitioner’s attempt
`transformative use inquiry from a holistic analysis tied
`to the express language of Section 107 into a checkbox
`inquiry that asks only whether a secondary use has a
`different meaning or message is contrary to law.
`
`
`
`B.
`
`15
`Petitioner’s Test Would Upend Existing
`And New Creative Industries.
`
`The creative industries represented by the
`Copyright Alliance’s members rely on a balance between
`licensing derivative works and making fair use of
`preexisting works. Those industries depend on this
`balance, which has helped create billion-dollar industries
`and incentivizes creators—including individual creators,
`small businesses, and large corporations—to create and
`disseminate a diverse array of creative expression for
`the public to enjoy. Indeed, the copyright industries
`collectively employed nearly 11.7 million workers in
`2019, accounting for 7.71% of all U.S. employment, and
`added over $2.5 trillion to the U.S. GDP.
`
`Adopting Petitioner’s “meaning or message” test
`for transformative use would threaten this vibrant
`creative ecosystem.
` As a practical matter, a
`determination that a use is transformative almost
`always means a court concludes it is also fair use.3 So, if
`
`3 A 2011 study found that of all the fair use cases decided in 2006
`through 2010, the defendant won 100% of the time when the court
`found the subject use to be transformative. Neil Weinstock
`Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715,
`754–55 (2011). Since that time, the Copyright Alliance is aware of
`only one circuit court decision holding that a use was transformative
`but not fair. See Fox News Network, LLC v. Tveyes, Inc., 883 F.3d
`169, 180–81 (2d Cir. 2018); see also Jiarui Liu, An Empirical Study
`of Transformative Use in Copyright Law, 22 Stan. Tech. L. Rev.
`163, 185–86 (2019) (finding th
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