The line between plagiarism and inspiration in copyright

Sergiy Barbashyn Attorney, managing partner of Barbashyn Law Firm
1 December, 2023 8 min for reading
1 December, 2023 8 min for reading

Copyright is an essential tool for protecting authors’ creative work and intellectual property. However, there is the concept of fair use, which provides a balance between copyright and the ability to use works for a wide variety of purposes without the author’s permission.

The decision in the case of Andy Warhol, which was adopted in May 2023, prompts new thinking about applying this concept. In this article, we will examine the idea of fair use and the impact of the Wargol decision on this issue in more detail.

 

What is fair use?

Fair use, also known as “fair use” in the US and “fair dealing” in many other countries, is a legal concept that allows limited use of a copyrighted work without author consent or payment of royalties.

This concept involves four factors that determine whether a use is “in good faith”:

  • The purpose and nature of such use (conversion factor), including whether it is commercial or non-commercial

Yes, a use may be considered in good faith if, among other things, the subsequent use has a different purpose and character and is sufficiently different from the initial use. One key aspect in this context is the extent to which such use is transformative, such as parody, criticism, or education.

In particular, the Supreme Court reached this conclusion in the Campbell v. Acuff—Rose case.

  • The nature of the work

In this case, whether the work is creative and whether it has been published is taken into account.

  • The scope and significance of the used part of the whole work.

According to this factor, using an insubstantial part of the work is more likely to be recognized as fair use than the work as a whole.

  • The impact of “fair use” on the potential distribution market and price of a copyrighted work.

Because of this factor, the court must assess whether the creation of the transformed work has reduced the author’s income from the original work because buyers choose the copy over the original.

All these factors help determine whether the use of a work can be considered fair in the context of copyright.

The concept of fair use in Ukraine

The term “fair use” is not directly enshrined in Ukrainian legislation. However, Ukraine’s law, “On copyright and related rights,” contains provisions that consider fair use principles.

In particular, the law contains definitions of some copyright restrictions, which allow using works in certain situations free of charge and without the author’s consent. For example, this may refer to using quotations or short extracts from published works in the field of education, during scientific research, in news, commentary, to create parodies or caricatures, and in other similar situations. These restrictions are to the theory of fair use in foreign law.

History of Wargol v. Goldsmith

Fair use often becomes the subject of court decisions and disputes due to the ambiguity of interpretations of this concept. The case of Andy Warhol v. Lynn Goldsmith, which arose from using a photograph of Prince to create Warhol’s painting, is an example of such a controversial legal case.

In the art world of the 20th century, Andy Warhol’s name became synonymous with pop art and cult art. His work has always attracted attention not only for its innovation but also for issues related to copyright and originality of his works.

Many of Vorgol’s works were based on existing objects, including products of mass culture and photos of famous people, which raised the question of the degree of his authorship.

In Vorgol’s work, the case related to using a photograph of the singer Prince to create a series of “Prince” paintings is particularly well-known and controversial.

In 1984, Vanity Fair hired Worgol to create an illustration for the magazine based on Lynn Goldsmith’s photo of The Prince. Goldsmith received a one-time fee of $400 for the image.

However, Vorhol created not one but a series of paintings based on Goldsmith’s photos. One of the paintings in this series became the subject of a fierce copyright dispute in the future.

In 2016, Condé Nast used one of Worgol’s alternative works as the cover of a particular magazine, The Prince’s Genius, paying the Worgol Foundation a hefty sum for the license. Lynn Goldsmith, the photo’s author, claimed that she first learned about the subsequent use of her photo thanks to this publication.

Goldsmith contacted the Warhol Foundation with a notification of alleged copyright infringement. However, the Foundation sued her. Lawyers for the Foundation argued that the doctrine of fair use could be applied to Worgol’s works and that there was no violation of copyright law because the artist altered the photograph. The case was considered in the courts for several years.

The decision of the Supreme Court and its significance

The Warhol v. Goldsmith case eventually reached the Supreme Court. Determining fair use is a complex process, and any guidance from the Supreme Court on this issue is valuable and essential.

The question before the Supreme Court was the significance of the purpose and nature of the use in determining its bona fides in a particular case.

On May 18, 2023, the court ruled in Goldsmith’s favor, finding that Warhol’s use of Goldsmith’s work was not in good faith because its purpose and nature were essentially the same: to commercially license an image that was to be used to illustrate an article about Prince. The court also evaluated the parties’ evidence and arguments and found that Wargol’s work needed to be more sufficiently different from the original photograph Goldsmith took to be considered a transformative use.

However, this decision does not mean any commercial use of a copyrighted work is unfair. It can be fair if the commercial use is transformative and has a different purpose than the original.

For example, if the Foundation used an image of Prince created by Warhol to create a documentary, it could be considered fair use because the documentary has a different purpose than the magazine portrait.

Conclusion

Over time, courts’ analysis of the first fair use factor has evolved into determining whether a new work is transformative. At the same time, the importance of choosing the purpose, the nature of the use, and whether the use is commercial was ignored. Such an approach may distort the fair use doctrine.

In its decision in Vorgol, the Supreme Court recalled the importance of a comprehensive analysis of these three elements on a case-by-case basis when determining fair use.

In addition, three other factors must be considered in determining whether a particular use is fair because no single factor is decisive.

Currently, opinions regarding the meaning of the Supreme Court’s decision in the case of Warhol v. Goldsmith are ambiguous and often contradictory. However, time will tell how it will affect the fair use doctrine and art.

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