Fair Use and the Judicial Search for Meaning

Abstract

Are courts capable of deciphering the true meanings of artworks? Is it reasonable for them to try? Recent litigation between the Warhol Foundation and the photographer Lynn Goldsmith brought these questions into sharp focus. Fair use, the limited exception to the otherwise exclusive property rights granted to copyright owners, requires courts to assess the meaning of a secondary work so that they can determine whether the secondary use is sufficiently “transformative” to qualify for the fair use defense. Warhol used Goldsmith’s photo of Prince as the basis for his silkscreen, which he called the Orange Prince. Was it infringing, or was it fair use? What did Warhol’s work mean? Despite the centrality of this doctrinal question in all fair use disputes, neither courts nor scholars have ever devised a methodology for assessing new meaning. The theoretical vacuum has led to unpredictable and inconsistent case law. Warhol provided the Supreme Court with a rare opportunity to sharpen methodology, but the Court declined, leaving a pernicious theoretical gap at the heart of the fair use doctrine.

This Article provides a much-needed judicial basis for assessing new meaning. By weaving together doctrinal analysis—with insights drawn from existing case law—and art theory, the Article provides a framework that courts can utilize to determine whether new meaning exists.

First, the Article proposes a methodology that allows courts to determine whether there is new meaning without forcing judges to try to find—in vain—what a work of art “really” means, a doctrinal and theoretical dead end that, to date, has yielded painfully inconsistent case law. Second, the proposed methodology not only relieves judges from the impossible task of figuring out what a work of art means, but also provides a clearer standard for when new meaning is transformative. Third, the suggested standard for transformativeness provides a useful method for finding a healthy balance between free speech and economic rights, which are inevitably at odds with each other in fair use disputes. By recognizing that creative works have unique interpretive demands and that the judge’s role should be to inquire into meaning rather than to legislate it, the Article provides our courts—as well as fair use practitioners—with a clearer path forward than our current jurisprudence allows.