Supreme Court and Second Circuit Issue Conflicting Messages on Fair Use Doctrine

When determining whether an unauthorized use of a copyrighted work constitutes a fair use (and thus relieves a secondary user from liability for copyright infringement), courts consider four factors enumerated in Section 107 of the Copyright Act of 1976. In the span of a single week, the Supreme Court and the Second Circuit each issued copyright decisions, sending mixed messages on the proper analytical framework for fair use cases. In Google LLC v. Oracle America, Inc., the Supreme Court held that Google’s unauthorized use of declaring computer code is a fair use, taking a broad view of transformativeness and a narrow interpretation of market harm. In The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Second Circuit took the converse approach, relying on a narrower view of transformativeness and a broader conception of market harm to find that Andy Warhol’s unauthorized use of a photograph to create subsequent artworks was not a fair use.