Litigation partner Mark Lezama spoke with Law360 for a story on the one-year anniversary of the Supreme Court’s decision in the Warhol case, and the impact the decision has had on jurisprudence around the topic of “fair use.”
In the Warhol case, the Court addressed when a secondary work’s use of a copyrighted work qualifies as “transformative.” The Law360 article notes that despite the Supreme Court examining a relatively narrow question in the case, the decision has since been cited in dozens of briefs, and courts have sometimes struggled to adopt the Supreme Court’s reasoning in cases before them. The questions about how to consider and weigh fair-use factors means it is likely to take years of jurisprudence to understand the decision’s full effects—something Lezama spoke to.
“You might debate whether [the Warhol decision] changed the law per se,” he commented, “but certainly at a minimum it clarified the fair use analysis on the first factor and made clear that certain types of arguments weren’t going to carry the day.”
Even so, Lezama expects difficult cases will continue to arise, saying “I think especially we’re going to see courts struggling with, ‘How do I figure out what the purpose of this use is?’ Or, ‘How do I figure out the purpose of the original work, and how do I compare them?’ Because I think in some situations it will be clear, and in others it’ll be a little bit murkier, and the courts are going to have to do their best to try to navigate that.”
Read the full Law360 article here [subscription required].
