Michael Donaldson Speaks to Your Inside Track About How the Andy Warhol Foundation Supreme Court Ruling Fits into Fair Use Analysis
Michael Donaldson recently spoke to musicologist Judith Finell and attorney Don Franzen about how the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. Supreme Court ruling and other landmark cases fit into fair use analysis in Your Inside Track’s newsletter.
Michael explained to Judith and Don that he believes the opinion did not alter the way fair use is examined, despite widespread reactions.
“It apparently rattled a lot of people because it focused on the use,” he told Your Inside Track. “The Folsom v. Marsh decision from 1841, which was the first fair use case in America, was always about the use. That’s why they call it ‘fair use.’ It’s not a fair photo, not a fair statute that you can say ‘oh, it’s fair to use this statute anywhere.’ It’s the use. In fact, in our retainer letter, a lot of people come to us to clear their film, and we have a paragraph that says, keep in mind, just because it’s fair use in your film doesn’t mean it’ll be fair use in promotional material.”
He explains that this concept is the very essence of the Warhol case – because fair use is highly subjective and up to interpretation, it relies heavily on purpose and intent.
“The Warhol image was probably fair use when it was hanging in a museum because it was so transformed. But the presentation of it on a magazine cover is the exact same reason the photo was originally created,” he analyzes. “It was created for a magazine cover, and then Warhol made changes. The changes were quite substantial, but it was the same use exactly, and that was the problem,” he adds.