Is Warhol Bad for Documentarians?

There is some concern that the Supreme Court's decision in Andy Warhol Foundation v. Goldsmith will harm the documentary filmmaking community. Scott Hervey and Tara Sattler discuss the implications of this case on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: When Andy Warhol Foundation versus Goldsmith was pending before the Supreme Court, a group of prominent documentary filmmakers, including the makers of The Last Days of Vietnam, The Invisible War. Won't you be my neighbor? And RBG filed an amicus brief and claimed that the Second Circuit's proposed change to the way fair use is analyzed could, quote, devastate now that Warhol has been decided, it's clear that the way in which fair use is now to be determined will have an impact on documentarians who rely on the use of unlicensed third-party materials as part of conveying their story. We are going to talk about this on this installment of The Briefing. We covered the Supreme Court's decision in Andy Warhol Foundation versus Goldsmith in a previous episode, but let's hit on some highlights relevant to the impact of this decision on documentarians. The decision changes the way fair use is analyzed. In determining fair use, four factors are examined. The first fair use factor examines the purpose and character of the use. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell versus Acuffro's Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether the new work merely supersedes the objects of the original creation or instead adds something new with further purpose or different character, altering the first with new expression, meaning, or message. In other words, whether and to what extent the new work is transformative. Tara: This transformative use analysis took on great importance and often eclipsed the other fair use factors. Prior to this case, the focus has been on whether the second work had a different aesthetic or conveyed a different meaning. If the work was transformative, it was almost always found to be fair use. The importance of transformativeness all changed with this opinion. The fact that the second work conveys a different meaning or message from the first work without more is not dispositive. Now, the focus of the first fair use factor, the purpose and character of the use, has shifted from a context-based analysis to a purpose-based analysis. Scott: That's right, Tara. Now, the first fair use factor will analyze whether the purpose of the use of the second work is different enough from the first to reasonably justify a copying. So now let's talk about how this decision will and will not change how documentarians can use third party footage under fair use. So documentarians frequently use third party footage in order to comment on or critique the footage itself. Section 107 of the Copyright Act provides that the fair use of a copyrighted work, including such use for purposes such as criticism and comment, is not an infringement of copyright. Tara: At oral argument in Warhol, both Goldsmith and the US. Government agreed that commenting on the original work, criticizing it, or otherwise shedding light on the original work is the most straightforward way to establish fair use. Scott: Right. In its opinion, the Supreme Court reasoned that where the use is for commentary or criticism, a copying of the first work may be justified because copying is reasonably nec...