The recent publication of Griner v. King seems to have just about everything: an iconic meme (Success Kid!), a troll-ish politician, charges of political censorship, and an application of the latest big Supreme Court opinion on fair use, Warhol v. Goldsmith. Oh my!
But the most important thing for friends of fair use to know about this case is that it’s actually totally routine.
On the biggest question of fair use today—will the lower courts continue to preserve fair use rights after Warhol?—the opinion faithfully follows the Supreme Court’s lead and applies the same fair use approach that has served us well since 1994: the key question in fair use is whether your use serves a new, socially beneficial purpose relative to the original purpose of the work you’ve used. If it does, then by definition it will not harm the traditional market for the work(s) you use. When the public benefits from a new use, and the copyright holder suffers no cognizable harm, that’s the essence of fair use. If your purpose is more or less the same as the original and it’s for-profit, well… not-so-much.
The transformative test has allowed the blossoming of free expression and innovation in every domain of human endeavor – including documentary film and television, software development, fine art, book publishing, journalism, scholarship, and technology. Those of us who have relied upon and defended fair use in our work were relieved last year when the Supreme Court reiterated its commitment to this framework in its decision in Warhol.
That was not what attorneys for Griner argued, nor is it how Big Content has been spinning Warhol. According to Law 360 (paywalled) during oral arguments at the 8th Circuit:
“[Griner’s attorney Stephen] Doniger told [the court] that Justice Sotomayor’s opinion had made ‘commerciality’ the touchstone of evaluating whether an allegedly infringing use of a copyrighted work is “transformative” and entitled to fair use protection.”
Doniger also filed an amicus brief in Warhol on behalf of the image licensing behemoth Getty Images, among others, and no doubt that was what Getty and others hoped the Warhol court would say. But that’s not actually what happened. And it’s not what the 8th Circuit ruled in Griner v. King.
Instead, the court applied the same principles that have worked so well since Campbell, and that were endorsed once more in Warhol: the commercial nature of a use “is to be weighed against the degree to which the use has a further purpose or different character.” In other words, commerciality is only important if and to the extent that the new user’s purpose is the same or similar to the original work’s purpose. As the Supreme Court recognized in Campbell, nearly every paradigm case of fair use mentioned in the Copyright Act (criticism and commentary, news reporting, even scholarly publishing) is conducted for profit. Commerciality can’t be a litmus test for fair use. In reality, “[T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell said this, Warhol reiterated it, and so does Griner.
In Warhol, the Supreme Court found that while the iconic pop artist had certainly added new expression to photographer Lynn Goldsmith’s portrait of Prince, which he used in making his own series of portraits, his purpose in this case was essentially the same as the photographer’s: to create a commercial illustration depicting Prince to be licensed to magazines to accompany coverage of the musician. (Despite his undeniably iconic status as a fine artist, Warhol was an unabashed commercial illustrator throughout his career, and he created these portraits on assignment from Conde Nast in the 1980s.) As Justice Sotomayor explained, Warhol’s use seemed to be an example of “fair use’s bête noire”—commercial substitution.
The King Campaign’s use of the Griner meme was also substitutional, according to the 8th Circuit. The Griners had made lucrative agreements with other commercial brands to use the “Success Kid” image in advertising, the court argued, and this was a reasonable and likely market for a meme image of this kind. Critics can (and do) argue that this is a flawed analysis that may have bad policy outcomes for the use of memes, and that may be true. But what’s most important for the long-term viability of fair use as we have known it since the dawn of the internet age is that these debates are still taking place within the tried-and-true framework of transformative use. The question is not, “Is this use commercial?” but rather “Does it serve a new purpose?” Unlike the 10th Circuit’s bizarre decision in Whyte Monkee (which an en banc rehearing will hopefully roll back), the Griner v. King opinion maintains the integrity of the fair use doctrine.
Brandon Butler is executive director of Re:Create.
