AIPLA Asks Supreme Court to Address the Role of Transformativeness in the Copyright Fair Use Analysis

For Immediate Release


Arlington, VA. June 17, 2022 - The American Intellectual Property Law Association today filed an amicus brief with the Supreme Court today in in favor of neither party in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869, which the Supreme Court has taken up to address the role of transformativeness in the copyright fair use analysis.  AIPLA urged three main points on the Court.  First, AIPLA underscored the importance of a flexible, adaptable fair use doctrine, explaining that at least all four enumerated statutory fair use factors should be weighed and no one factor (or subfactor) should, as a rule, be prioritized over all other factors found in 17 U.S.C. § 107. Although transformativeness can sometimes play an important role in the analysis, AIPLA seeks the Court’s confirmation that it is not the sine qua non of fair use in every case.  Further, AIPLA drew the important distinction to the Court’s attention between works that are transformed (derivative) and transformative (fair use) and argued that the fair use doctrine, by way of transformativeness, should not encroach upon the exclusive statutory right of copyright owners to create derivative works.

Second, AIPLA advocated for a more objective “reasonable perception” standard in determining a work’s purpose and meaning, and asked the Court to renounce wholly subjective determinations; embracing a test that focuses the inquiry on the views of a “reasonable perceiver” familiar with the underlying work should mitigate against the impact of self-interested testimony and judicial preferences and yield more predictable outcomes. Third, and finally, AIPLA urged the Court to expressly reject a celebrity-plagiarist exception to copyright infringement because fair use should be applied equally to all and should not turn on whether an artist or their style is famous.

The full brief is available here.

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AIPLA, the American Intellectual Property Law Association, was founded in 1897 to maintain a high standard of professional ethics. AIPLA’s mission includes helping establish and maintain fair and effective laws and policies that stimulate and reward innovation while balancing the public’s interest in healthy competition, reasonable costs, and basic fairness. AIPLA is a national bar association of approximately 13,500 members in private and corporate practice, in government service, and in the academic community.

AIPLA Contact:

Meghan Donohoe
Chief Operating Officer
AIPLA
+1 703 415 0780