Warhol’s Lessons for the Publishing Industry

Abstract

What, if anything, can the publishing industry learn from Andy Warhol Foundation v. Goldsmith? In this Article, I will focus on three key areas that the Warhol Court touched on in its decision—transformativeness, commerciality, and market harm—to see what questions were answered and what questions were left for another day

Publishing is, of course, the original copyright industry. The world’s first general copyright law, Great Britain’s Statute of Anne, exclusively protected “books.” The primary focus of the first copyright law in the United States was also books, though the law also covered maps and charts. Today, the U.S. publishing industry is diverse, ranging from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. Further, it remains vital to society. In 2022, the U.S. book publishing industry generated $28.1 billion in revenue. Beyond its economic contributions, a healthy and independent publishing industry supports the nation’s political, intellectual, and cultural systems. Indeed, the free operation of the publishing industry in a nation cannot be separated from the free exercise of democracy.

Copyright continues to serve as a critical legal foundation for the work of publishers. This includes both an appropriately balanced fair use doctrine, which publishers rely on regularly in the course of their work, and a meaningful derivative works right.

Helping courts correctly distinguish between the two is what motivated the Association of American Publishers (AAP), the national trade association for U.S. publishers, to file an amicus brief in support of Lynn Goldsmith. AAP’s concern was not that courts were generally not getting it right, at least in cases involving books and other publications. The concern, rather, was that there was a lot of room for the Supreme Court to get things wrong and undermine the derivative works right through an unbalanced conception of the transformativeness doctrine.

The amicus brief observed that “[p]ublishers rely on the derivative works right daily, including to justify the use of a license for a film adaptation of a novel, translation of a novel into another language, or recasting of a novel into an ebook or audiobook—all of which are quintessential examples of derivative works.” Publishers in the educational space also rely on the derivative works right to protect supplementary materials, instructor solution manuals, and other adjuncts to the textbooks and course materials they create and distribute.

From the perspective of book publishers, then, the Court got it right. It recognized the tension between transformativeness and the derivative works right, explaining that “an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works." If the Court did nothing beyond shining a light on this tension, it would be considered a good outcome for publishers.