The Triumph of Three Big Ideas in Fair Use Jurisprudence

Authors

Michael W. Carroll, American University Washington College of LawFollow
Peter Jaszi, American University Washington College of LawFollow

Document Type

Article

Publication Date

4-24-2024

Journal

Tulane Law Review

Volume

99

Issue

2

First Page

1

Last Page

64

Abstract

In two recent cases, Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), the Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law’s fair use provision. In doing so, the Court withstood significant pressure from industry participants in these cases to change course. This Article argues that the Court’s decisions, which represent one third of the Court’s total merits decisions on fair use, are historic. The principal contribution this Article makes is to demonstrate to courts and parties in future fair use disputes how the holdings in these cases readily synthesize to provide useful guidance that will be relevant, for example, in disputes about generative artificial intelligence. This Article disagrees with those who argue that Warhol represents a retreat from transformativeness, demonstrating instead that the Court in Warhol simply rejected a caricatured version of this form of analysis.

This Article also makes an original argument that shows how these cases reflect the hardwon triumph of three big ideas that were hotly contested in the evolution of the fair use doctrine. First, this Article summarizes how courts disagreed about whether fair use was distinct from the question of substantial similarity in infringement analysis. This Article shows that this issue was not fully resolved until Congress codified fair use as a distinct doctrine in the Copyright Act of 1976. Second, this Article summarizes how legislators resolved the debate over whether to codify fair use or to leave it as a judicially-implied limit on exclusive rights. In doing so, this Article credits Barbara Ringer, the Copyright Office’s point person in the legislative process, as the primary draftsperson of the core of codified fair use in § 107. Finally, this Article shows how codification facilitated increased Supreme Court review of fair use disputes, which led the Court to adjudicate fair use issues in four cases decided within a single decade, culminating in its adoption of transformative use.

Recommended Citation

Michael W. Carroll & Peter Jaszi, The Triumph of Three Big Ideas in Fair Use Jurisprudence, 99 Tulane Law Review 1 (2024).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2265