Kernochan Symposium 2023 (Part 2)

Panel 2: The Derivative Works Right in Warhol v. Goldsmith
Kernochan Symposium 2023: Panel 2 - The Derivative Works Right in Warhol v. Goldsmith

[OFER TUR-SINAI] So welcome again, everybody. And I'm delighted to moderate this wonderful second panel, which is going to be a panel of academics. So we'll start by having each of these wonderful speakers sharing with us some of your thoughts about this fascinating case.
Later on, we plan to have more of a conversation between the speakers as well get a chance to respond to each other's talk. And then, in the remainder of the time, we'll open it to questions. So this is the game plan. I'll introduce the speakers now very briefly. If you want to learn more about them, you can check the materials online.
So, the first speaker is going to be Professor Shyam Balganesh from Columbia Law School. Then the second speaker will be Professor Lateef Mtima from Howard University School of Law. And finally, we will have Professor Pam Samuelson from the University of California Berkeley School of Law. So without further ado, I'll invite Shyam to begin.
[SHYAM BALGANESH] Thank you, Ofer I'm going to try and-- I've heard some complaints about it not being loud enough. So I'm going to use the lav as well. So hopefully you can hear me very clearly now. OK. Great. Thank you all for coming. I am acutely aware of the fact that we're eating into the lunch slot. So, as I said to Lateef and Pam, our job is to keep you entertained enough so as to not be hungry. So we will endeavor to do that.
So the paper that I'm going to be talking about today for the symposium is co-authored with Professor Peter Menell at Berkeley, and it's an attempt to make sense from the Warhol majority opinion of the existence of a standard to demarcate the line between 106(2) and 107. And our account is that there is, in fact, a standard that can be discerned from the majority opinion on how to parse the line between a derivative work right and transformative use.
So let me start by presenting the obvious problem and the need for reconciliation, which no doubt all of you are very familiar with, which is that 106(2) obviously talks about the exclusive right to prepare derivative works. And then the derivative work in section 101 is defined to include the word transformed at the very end.
So it must be based on a pre-existing work, in which a work may be recast, transformed, or adapted. Then Campbell v. Acuff-Rose, which adopts Judge Pierre Leval's 1990 article, uses the word transformative to describe in its discussion of the first fair use factor, the manner in which to assess certain kinds of substituted effects.
And the precise language from Justice Souter is that it asks the first factor. In other words, whether and to what extent a new work is transformative. So the need for a reconciliation obviously comes about statutorily and textually from the fact that the idea of transform is embedded in 106(2) and also in the way in which Campbell v. Acuff-Rose builds the idea of a transformative use into the working of fair use.
OK. So moving from there, though, before we jump into the reconciliation and Warhol. I want to say a little bit about the legislative history. We've talked about the statute, we've talked about what Campbell says. So a couple of things to note.
In our reading of the legislative history -- going back to the supplemental report of the Registrar and then the House and Senate reports in 1976 -- what we see in the Congressional description of what courts should be doing with the 106 set of rights is there's a constant reference to 106 rights needing to be understood in the broadest possible terms.
That the exclusive rights were structured in broad terms multiple times, including in the discussion of the derivative works right. But this is a more general statement as to the working of Section 106 more generally.
Then we come to section 107, where obviously there's a recognition that it's something of a delegation to courts to decide the cases on a contextual common law basis case by case.
But I think one of the things to highlight is that in drafting section 107, Congress did not want courts to remain completely unguided. This is in contrast to what Congress did, let's say with the originality standard, where Congress puts in one word -- "original" -- in the statute, and then says the judicial standard is hereby incorporated.
Instead, what Congress does in 107 is specifically to highlight what courts had been doing before in an effort to continue to have courts doing that into the future. So it was a guided delegation to courts. And I think what I want to highlight at the very outset is that in developing the transformative use standard in Campbell v. Acuff-Rose, no doubt building on what Judge Leval had said in 1990, Justice Souter recognized this.
Justice Souter recognized that what he was developing in that case was an attempt to integrate the common law function of judging, which had been delegated with the statutory guidance. It wasn't an unbounded discretion.
And so, for example, you see him referring to the role of the preambular categories. Recognizing that, yes, Congress says they're not to be given any special status -- in the sense of being exempt from the four factors -- but nevertheless, he says, well, we can look to figure out justification.
And so what's important, I think, to recognize is that a large part of what we see coming into Warhol has its roots methodologically in what Justice Souter did in Campbell v. Acuff-Rose, which is developing an account of how the statute and the legislative history are to be melded with the judicial function.
And, in particular, one of the elements that Justice Souter highlighted in his opinion with specific examples, such as the nature of the parity when it is used for a private use versus when it's used for an advertisement versus when it's used for some other broader non-commercial purpose is the commerciality role, which he says, comes from the legislative history where Congress makes clear that commerciality was explicitly included into the first fair use factor and which courts cannot ignore.
Now, of course, he says it's not to be dispositive. But he melds it into his account of how transformativeness is to be assessed in the first fair use factor. I highlight this to note that therefore, we should understand Campbell v. Acuff-Rose not as having been a pure common law decision, which was unconstrained. But rather a decision, which in a methodologically nuanced way, sought to melt together the statute the legislative history. And very importantly, no doubt, the judicial function therein.
And I think Justice Sotomayor carries this forward in her majority decision.
So moving on. So if you'll indulge me in a moment of immodesty, we believe that the court adopted a framework that we had advanced in our amicus brief, which we called the "Go Beyond Test" in the amicus brief that Peter and I filed along with my colleague, Professor Ginsburg to suggest that the way to draw the line between 106(2) and 107 was to look at the same kinds of considerations one does for a derivative works right, but to try and emphasize that there is a quantitative and qualitative aspect beyond it.
And I think our reading -- Peter and my reading -- of the opinion that comes out of Justice Sotomayor's embrace of this is that it incorporates this standard and operationalizes it with three distinct elements.
And that's what I want to highlight. That the "Go Beyond Standard," as we read the majority opinion, has three different components, which I think help us make sense of the line between the derivative works right and fair use.
Now, I want to say one thing at the very outset because we're just following on the heels of a panel, which discussed a lot of specifics and the way in which lawyers and creators work, I'm under no illusion that obviously Justice Sotomayor's opinion provided little more than the outline of a standard. It's not a detailed, 15-step framework for this. So I'm not going to try and advance that case.
But I also believe very strongly that this issue was at the forefront of the way in which she framed the working of section 107 transformativeness idea, vis-a-vis the recognition that, in this case, we were dealing with a derivative work. And there are clear observations in the opinion to this effect. OK.
So in our account, balancing the two -- the derivative works right and transformativeness -- involves three components. The first one is an independent justification for the fair use, which she emphasizes drawing on what Campbell v. Acuff-Rose had very strongly emphasized, in turn, drawing from the 1990 Pierre Leval article.
She connects that then to the second component, which flows from it, but is nevertheless distinct. And I'll describe in a minute. The requirement of a distinct purpose. And here this is where the majority opinion makes it into a differentiation based on the unit of analysis that there is not really an emphasis on understanding whether this is a transformative work, we're trying to understand whether it's a transformative use.
And then there's the third component, again coming from Campbell v. Acuff-Rose, which is that the balance of a sliding scale between commerciality and transformativeness is particularly acute when we're talking about derivative works, which tend to talk about a licensing market, where the nature of the substitutive effect is going to be slightly different.
So let me start with the first one, justification. So the idea of justification obviously has its origins in Judge Leval's article in 1990, which Justice Souter adopts in Campbell v. Acuff-Rose. And Warhol categorically endorses the idea of a justification but expands on it by introducing the idea of an independent justification.
And the reason why I emphasize this is it's apparent in the majority opinion that when Justice Sotomayor is talking about an independent justification, she's emphasizing the need for the independence of this justification because she has derivative works in mind.
So here's what she says. When I highlight this, this is straight from the slip opinion: "An independent justification like this is particularly relevant to assessing fair use where an original work and copying use share the same or highly similar purposes, or where wide dissemination of a secondary work would otherwise run the risk of substitution for the original or licensed derivatives of it."
So she's asking not just for a justification, but for an independent justification, which needs to rise to a higher level. So she says this is essential because the nature of the substitute of effect is an effect on the licensing market. But this obviously raises the question: What is such an independent justification? How exactly do we discern it?
Well, here we tease out, to some extent, from what the court says is not an independent justification. To come to the conclusion that what we're really looking for is something of a persuasive reason to account for the targeting that is independent of the market for the original.
That is not just trying to rely on, even if we don't use the wording "free writing" that is not taking effect if the popularity or the recognition that there is an established market for the original.
A persuasive reason that is beyond that in some ways is what she's looking for. She's categorical that new meaning or message does not cut it for this independent justification. Later on, she talks about how AWF had failed this standard based on a new meaning or message.
And then, also, the majority points to how the notion of an independent justification is altogether disregarded by the dissent. And there's a specific footnote where she describes how the dissent's failure to do this is at odds with Campbell v. Acuff-Rose, which is controlling the majority's opinion.
So the first component is an independent justification for the derivative market that cannot just be relying on the popularity of the underlying market for the original work. So even though we're recognizing not a direct substitution, this independent justification is critical because we're moving into the licensing market.
OK. Now we come to the second component, which is the distinct purpose. So here, there's no doubt that the distinct purpose requirement is closely tied to justification, but it's a subset of it. And here the point is that the distinct purpose element is what causes Justice Sotomayor to, among other textual reasons, focus on the fact that the unit of analysis for fair use is the use.
And I think it's important to recognize one critical thing where there had been some misunderstanding up to this point. After Warhol, in our reading, which I think is correct, there is no such thing as a transformative work. There is a transformative use. The statutory and the legal category is a derivative work.
A derivative work can rise to the level of a transformative use depending on how it is used. But that unit of analysis, which the concurring opinion by Justice Gorsuch gives a textual basis to-- I think is absolutely crucial and flows from this idea of needing to separate out the working of the statute's protection for a derivative work and fair use, which is about the use.
And what the court, I think points to is that transformativeness is not necessarily about the content and the underlying work. But it's about its purpose. It's not just the fact that there is a work for it to constitute a fair use.
We have to look at the context for the work. What is the work being done for? Is the work being injected into the marketplace? Is the work a parody? Is the work an advertisement? Is the work commercially marketed, or is the work a simple doodle that I put in my back pocket?
That's a critical component, which goes into the identification of a purpose. It's not about recognizability anymore, which used to be some of the ways in which we tried to understand the notion of a purpose. It's not about whether you can see the underlying work in the derivative. It's about the purpose that I think flows very much from the justification and the recognition that what we're trying to do is bifurcate these two markets.
I want to throw in an additional component because I think here some law and economics-oriented scalars are reading a little too much normatively into the opinion. And here I point to what some of the recent reporters in the ALI restatement have done, which is that distinct purpose has nothing to do with direct competition.
Distinct purpose has to do, yes with a substitutive effect. But the substitutive effect that the court talks about is not a substitute of effect in terms of direct market harm. Why? I think Justice Sotomayor makes very, very clear that this is the way in which to bifurcate the existence of the first fair use factor and the fourth.
To talk about market harm would conflate the two and do exactly what the dissent was complaining about. And that's the reason why this has nothing to do with competition. So the distinct purpose is about the unit of analysis and the nature of the bifurcation of the market, which brings me now to the third part, which is the fulcrum of balancing commerciality and transformativeness.
And I think it's important to recognize that Justice Sotomayor and the majority carried forward the recognition that fair use was not an unconstrained common law doctrine. Congress had not just told courts, "Go for it." Congress had told courts, "Go for it as you had been going for it before. And here's how we see you having gone for it before."
So the guidelines played a certain important role. Footnote 6 is very, very important. There's a citation to the legislative history, which explains why Congress put in the word "commercial" into the first fair use factor. And then Justice Sotomayor validates the Campbell sliding scale, which is to say transformativeness is to be balanced against the commerciality.
And if you go back and read in extensive detail Justice Souter had set out how to assess this commerciality. There's a beautiful illustration that we may disregard as dicta, where he says, well, even when it comes to a parody, yes, a parody is meant to make you laugh. But it can make you laugh for different reasons.
It can make you laugh at the dinner table. It can make you laugh because you're with an audience of a few other people. Or, it can make you laugh because it's part of an advertisement. If it's part of an advertisement, it's heavily commercial. And while it may be transformative, well, you have to weigh that commerciality against that transformativeness.
And I think that's particularly crucial for derivative works. Because begin to ask the question, why was the derivative work created? Was there a commercial purpose behind the derivative work? Because it's no longer just about the creation of the work. We've taken a transformative work off the table. We're asking what was the work created for.
I think Justice Souter anticipated this very question. And the last thing I will say about this commerciality versus transformativeness idea, which comes from Campbell, is that there's no inconsistency with Oracle. And I think that Justice Sotomayor goes to some length to show that there is a complete validation of this commerciality idea in Oracle as well.
What she says is, look, I'm not suggesting that commerciality is meant to be dispositive. But in Oracle, the court makes very, very clear. Here's what Footnote 18 she points to. She says, "It's to be weighed against it to the extent to which it has a different character."
Footnote 8 and Footnote 18, she specifically points to how Justice Breyer had identified commerciality, but balanced the two and concluded that it was not a relevant element to eliminate fair use in that case. Not that commerciality was irrelevant. So in a sense, the fact that she's bringing this in for derivative works doesn't show an inconsistency with Oracle.
But more than anything else, I think it suggests a re-emphasis on parts of Campbell that had been ignored. And very importantly, does so for the context of a derivative works right. So let me just conclude by saying, I want to be very clear. I don't think the majority opinion is offering you a 15-point test.
But what it is speaking to -- and this I think is the crucial component -- it's speaking to Courts of Appeal on how exactly to operationalize that line further. And judges have tried, there are some judges who have waved their hands and saying, oh, this is just inconsistent. So here I refer to the Seventh Circuit.
And there are other opinions such as one of my favorite-- and I see Judge McCune. The ComicMix case trying, having to come up with it. I think Warhol opinion tells us how to go forward with a framework to operationalize that by taking off a large amount of conceptual confusion that had muddied the area, including this idea of a transformative work. OK. Look forward to the conversation. Thank you.

[LATEEF MTIMA] OK. Does it matter which side? Oh, I guess it works. OK. Let's see if that's working. I'm usually tech-challenged. One of the-- first off-- well, before I say anything else, if you came for the PowerPoint, you can get a refund at the front--
--because I don't use it. I'd like to thank the Kernochan Center for this wonderful program and in particular, Professor Loengard for the invitation to be here. This is a fantastic opportunity and I'm very much looking forward to not only the presentation, but the opportunity to chat with these two brilliant scholars.
So I want to open like this, with a quote from the court: "This copyright case involves not one, but two artists." Not one, but two artists. And that's the reason as to why we -- myself and others at Howard and the Institute for Intellectual Property and Social Justice -- that's why we got into the case, and why we filed an amicus brief.
Because when-- you heard a lot of things about the case and from certain sides, you wouldn't get the feeling that there were two artists here. It seemed as if there was this one great artist, Warhol, and then somebody who just took a photograph and didn't do anything great with it.
Now to be fair, I think that this to some extent flows from our prevailing undue emphasis on economic incentives as the rationale for having a copyright system in the first place. In other words, if we have a system that tells us, well, listen, the reason why we have copyright is that first of all, if we want to get the best and the most really anything out of artists. Well, first of all, you've got to bribe them.
Secondly, once you've paid them, you have to very carefully watch them and reign them in every five minutes. Because they're going to continuously try to squeeze every extra penny out of it. Out of any time that anybody wants to use it and do anything with it in any way, shape, or form.
Well, if that's the way that we think about copyright, and that's the way that we think about creators. It's not surprising that when someone else comes along and says, well, I want to do something with a pre-existing work-- I want to do some follow-on activity.
It's not surprising that some in the legal community, including obviously Justice Kagan in her dissent, automatically presumes that what the secondary artist, what the follow-on artist wants to do, that we definitely have to be on that person's side. Because what are they doing?
They're helping us to reign in the original artists because the original artist is trying to grab everything for themselves. The original artists is almost an adversary in terms of society's interests. And of course, if somebody else comes along, and they want to do something contrary to what the original artist wants to do, well, of course, we're on that person's side.
The enemy of my enemy is my friend. But when we think about the reasons as to why we have a copyright system from a broader perspective, from something that doesn't rely solely on economic incentives, but thinks about broader and additional interests.
Well, we recognize that original artists-- any artist for that matter, well, they're not the enemy. They're really partners in this enterprise of trying to encourage people to engage in creative endeavors be they original artists or be they subsequent artists.
We think about the fact that what we're trying to do is to not focus only on the economic incentives that some artists -- many artists -- may be interested in, but to recognize that artists are interested and motivated by a variety of things -- sometimes money -- but in most cases, it starts with the need to say something.
I have something I want to say. I have something I need to say. And not only do I need to get it out, but I also need to know that I've made a sound. if I just express it, and nobody hears it while I'm the proverbial tree in the forest.
So it means that I not only need to say something, but I need to have an audience. And then society being the audience-- yeah, we need you to speak. But what we want to encourage you to do is we want you not just to express per se, we want you to express in such a way that you're going to say things and do things that will ultimately be beneficial to society.
I mean, when I'm stuck in a faculty meeting that seems to go on for a lifetime. [AUDIENCE CHUCKLES] I can express my displeasure the way that I might often do under my breath with profanity. But that's not too particularly creative and it's certainly not at all original.
So yes, society wants me to express. But they want me to express in ways to channel that intellectual energy in ways that are going to be beneficial to society. Yes, the original creation is useful. Yes, the follow-on work is also beneficial. And yes, society has an interest in artists doing what they do. But artists have an interest in society serving the role as audience.
This is not an adversarial relationship. This is a mutually reinforcing symbiotic relationship, and that's what copyright is all about. Trying to promote and preserve and balance all of these interests, which takes us to one of the key mechanisms that copyright employs in order to achieve this balance is, of course, the Fair Use Doctrine.
I know you're all wondering when is he going to get to it. OK. I've arrived. So in fair use, we are trying to do this sort of a balance. But of course, fair use applies to all of the exclusive rights. And what's happening when you apply fair use to copying, for example, it's different.
I mean, we allow somebody to copy work for a particular purpose. It's not likely to completely eclipse the copyright owners interest in reproduction. But with derivative works, there's a different type of tension. And that's what you've heard about all throughout this morning.
If we allow a particular derivative use as a fair use, the stakes are a bit higher. Because as we've seen, that can preclude the original artist's ability to create that derivative work herself.
In other words, if you want to write a story to see what would happen if Batman was back in time in the Old West, that could preclude Bob Kane, if he was still around, his ability to do the same thing because that story has already been done.
I'm not saying that we should not ever allow that. That's what the fair use mechanism is here for. To see whether or not, under what circumstances, we can allow such activity. But we see why the stakes are higher. Through fair use, if we allow an unauthorized derivative work, we could be not only allocating the right to create that work to someone other than the author and all of the revenues that may flow from that.
But we're also allocating to the secondary creator the decision as to whether or not that type of work can be done at all. So the stakes are a bit higher. And that's why when we are looking at fair use as being applied in connection with the derivative work right, we have so many nice factors to consider.
And indeed, when we're considering whether or not this secondary work if it also constitute a derivative work, and we're looking at transformation, well, one of the reasons as to why we would allow it if it is sufficiently transformative along with satisfying the other factors is not because we are trying to take something away from the original artist.
It's because we know that by encouraging this follow-on activity, we know that society is getting something. We're not taking sides between the first artist and the second artist. We're taking the side of society as a whole.
We know that when the secondary work is transformative, we know we are getting something that is a new and further purpose. We know that we are getting the work moving in a different direction. We know this from the easy cases -- the examples that we get in the statute. Examples of transformative uses for commentary, for critique, for teaching, parody.
We know that as a result of allowing this activity, society is going to have the expressive benefits of the first work. And we know we're also going to get expressive benefits flowing from the secondary activity. So I call those the easy cases because the statute gives us examples, and we also know what we're going to be getting as a result.
But now we come to the hard cases. The hard cases in which, yes, I've taken the original work. I've added something -- I've done something to it. But it doesn't fit into one of those categories. And now we have to determine that if it doesn't fit into one of those categories, are we going to allow it?
And this is where I think the Warhol decision gives us some guidance. Gives us in effect a new playbook. It does for me two things, OK? The first thing that it does is it tells us that, first and foremost, we have to confirm that when someone says, I am working with this. I'm using as raw material.
I want to come up with something that I believe is transformative. We have to confirm that transformation is actually occurring. This shouldn't be controversial. It seemed to me that when we were having conversations about the cases that reached the Supreme Court, it seems as if this was a controversial point.
In other words, what some people -- and I think is a big part of what Justice Kagan is saying in the dissent -- is that, of course, it's transformative.
I mean, after all, and you've heard this again and again. After all, it's a Warhol, OK? That ought to speak for itself.
In fact, how dare you ask the question? Well, I would quote from another artist-- musical artist-- Jazz Scat Singer Eddie Jefferson. For those of you who don't know him, you can Google Eddie Jefferson.
It's a Warhol. His response would be, "So what?" [CHUCKLES] OK. Google, it's a real cool song. There's nothing wrong with us confirming. And that's one of the first things that the two big things that I think that the Warhol case does. It says, hey, secondary post-hoc subjective unless, of course, you're going to say I was doing something transformative.
I guarantee you if I took Andy Warhol's Orange Prince and I doodled into it and they caught me, I'm going to say I was doing something transformative.
Right? So I think it's fair to simply say, OK, I hear you. I may want to subscribe to your newsletter, but I'm not going to take your word for it. All right. And I think that that's one thing that Warhol makes clear.
The second thing that Warhol does for us,
the second big thing is we know that in these cases because they will involve overlapping purposes, the fact that the secondary artist wants to do something expressive and the first artist is doing something expressive. So this is not your-- what I call, utilitarian transformation cases like putting a piece of art in an internet search engine, in which we know that there's a different purpose.
No, these have overlapping purposes. And basically what Warhol says is in these close cases-- and you want to do something artistic. But there's already an artistic work in existence. Basically, I read the decision as saying when in doubt, get a license.
OK. Now this point-- people who are the artists in the room, what do you mean? When in doubt, get out. But let me just quickly say, let's look at the downsides and let's look at the benefits. The downside of this is, well, I'll have to ask to get a license. And one risk is the original artist might say no. OK.
But again, Eddie Jefferson. So what? So what if they say no? Just because the first artist says no, it doesn't mean that you no longer have your fair use argument to fall back on. In addition, even if you lose that argument, we now have eBay.
eBay says that, OK, it's not a fair use. But it doesn't necessarily mean that we're going to enjoin you. So far downside doesn't look too bad. If I ask the original artist might hold me up for a lot of money. Could be, OK. But also could not be.
I mean, sometimes the original artists, not being particularly well-known, is very happy to see someone else making use of the work and sees some benefits coming from their.
Now, let's take a look at the benefits of this. Because so far I don't see the downside as being so problematic.
First of all, this gives the original artist at least a say. OK. What do you think about what I want to do? It's not a veto. We know that because of eBay. So we know it's not a veto. Original artists might get a few bucks. OK. That's also good. But the most important thing-- and this was the main reason as to why we got into this case-- is because the one thing that we know the original artists will get is attribution and recognition.
There are two artists here. This is especially important if the original artist is from a marginalized community: from an outside community, from a community whose work mainstream society might not know about. OK. We could run the risk of inadvertent misattribution.
We look at this work, we see it for the first time. It's doing all this wonderful, incredible stuff. And we think that the person who came up with all of this stuff is the secondary artist. We don't know that maybe 10% of it is the secondary artist.
We don't know that maybe what happened here was that the secondary artist went someplace like Jamaica-- [CHUCKLE] --saw a cool genre, thought that this would be great to bring back to America and add some popular riffs. And we think that this artist is just an incredible genius.
But if you got to get a license, we know one thing that's going to happen. It's going to be attribution, and people are going to know who did it first. And for me, that was why we got into this case. The fact that it appeared as if people were just dismissing this lowly woman photographer. And thinking that all that happened that was wonderful happened when Andy Warhol put his imprimatur upon it. That was the risk.
And let me close with this. The reason why that is such an important risk to consider, because once again, it's not only the fact that it's a risk to the original artist. It's a risk to our society as a whole because when we allow artists who are perhaps unknown, who are from smaller communities, who are from marginalized communities.
When we put them in the position that they look at what they've done, that their contribution ends up being ignored. It's not only that they don't get paid, it demoralizes them. It debases the quality of their contribution, and then they start rethinking, do I want to keep making art or do I want to go back and work in the post office where at least I'll get an honest day's pay for an honest day's effort?
I think especially since I don't have any slides, I think I'll stop there. Thank you.

[PAM SAMUELSON] So could someone help me get-- I don't-- There's no keyboard here to get the-- Oh, there it is.
And now for something completely different.
So the question-- the question I'm starting with is "Did the Solicitor General Hijack the Goldsmith Case?" And the answer to that is "yes," and the US Supreme Court let him get away with it. OK? That's a real takeaway of this particular thing.
There was dishonesty in the Solicitor General's brief. The same dishonesty showed up in the court's opinion because they all pretended that the case was only about the 2016 license, when in fact, it had been litigated from the get-go as a case about the 1984 creation.
And so if you kind of try to understand what is going on between Sotomayor and Kagan, it's Kagan is actually still talking about the original creation, which was the issue in litigation. And the Sotomayor decision only is talking about the one 2016 license.
So one thing I have to emphasize here is that the Supreme Court decision tells us virtually nothing about the distinguishing line between derivative works and fair use. It tells us something about fair use and maybe that has some spillover effects for derivative works.
But since the court didn't address the issue that was actually in litigation, and the issue on which the Supreme Court granted cert. You can't say, oh, yeah, they said everything about transformative works as derivative works. Because they didn't address the issue at all.
So it's really important to understand that everybody who briefed the case except the Solicitor General and Goldsmith's merits brief addressed the creation issue, and the Solicitor General basically said no, you don't even need to get to that. OK.
So what was the case about? So Goldsmith saw the Orange Prince at oral argument before the Supreme Court. The foundation's lawyer basically said she asked for millions of dollars as compensation and insisted that the Warhol Foundation had no copyright at all.
And they were confident that they were going to win on fair use or not substantial similarity. And the counterclaim did emphasize the 2016 license but also claimed that all 16 works were infringements and that Andy Warhol owned no copyright at all.
And all of Goldsmith's briefs until her merits brief asserted that the 1984 creation was infringement. It was only her merits brief focused on the 2016 license. And you see the Supreme Court saying that Goldsmith had abandoned her larger claims. And that is true, but why?
It's because the Solicitor General basically said the only issue that is before the court is whether The Andy Warhol Foundation's purpose in granting the 2016 license to Conde Nast was that grant of a license transformative.
Now, the Second Circuit had held all 16 works were unfair and non-transformative. And all of the briefs, as I say, focused on the creation issue. And the Solicitor General said, Warhol's creation of those works in 1984 may have been fair use. Didn't say it was, but it hinted that in fact, it was fair use.
But the Solicitor General said, even so, every subsequent use of such a work must be assessed as a fair or unfair use. And that's a relatively novel doctrine. We've usually assumed that if something was a fair use, that the copyright in the secondary work is basically unencumbered by the first work. That's kind of what we have been thinking for a long time.
But what happened was that in the meetings with the Litigation Counsel in the case, the Solicitor General let it be known what the Solicitor General was going to argue -- only the 2016 license is at issue here. And so Goldsmith counsel decided to scrap her larger claim so that she could win on this one narrow issue -- $10,000 is better than nothing.
But with the Solicitor General prepared to argue that the creation of the works might be fair use. She actually thought she might lose. And so I think it was a reason to do it. So the brief that I worked on for Authors Alliance to the Supreme Court really was focused on what I consider to be deep errors in the Second Circuit's Goldsmith ruling.
And I've listened a listed some of them here. I think one of the things that was most disturbing is that you couldn't tell what the test was. So is it recognizable similarity? Is it overarching purpose and function? Where did function come from? Is it same overall purpose at a high level of generality? What is a distinct artistic purpose fundamentally different in artistic distinct purpose? And what about the essence?
So there were really too many case. Moreover, the Second Circuit's decision ignored the relevance of the license. So Andy Warhol was commissioned under a license to make a transformative work. A work of art, that was his job. And he succeeded in that.
And so to my mind, at least one, and maybe all 16 were authorized derivative works. Warhol was not a party to the license between Vanity Fair and Goldsmith agents. There's no evidence that he knew of any restrictions that it might had.
And another thing that's concerning about the Second Circuit's decision was that it entirely ignored the implications of Section 103(a). So 103(a) just to remind yourself says, more or less, that if the infringing parts and the non-infringing parts are interspersed, there is no copyright whatsoever in the work.
You can't just say, well, it's encumbered. No, there's no-- the secondary artist has no interest in it at all. And so the Second Circuit said, oh, we're really not saying that it's a road that's an infringing derivative. But it says, oh, it's unfair. And oh, it's substantially similar.
So what is it going to be? It has to be an infringing derivative work. If it's an infringing derivative work then, Warhol has zero interest in the work. So I think the Supreme Court decision mostly fixed the Second Circuit's errors on these things.
I think it says new meaning or message may be relevant, even if it's not as dispositive. I think they didn't do the recognizable, similarity, overall high-level purpose similarity. And they didn't use purpose and function, thank God. And the Supreme Court was able to avoid the 103(a) and scope of the 1984 license and which of the works were authorized derivatives because they focused only on the 2016 license.
Now, I think if you want to go back and check out what I'm talking about, read page 37 of the merits brief. Because the page 37 of the merits briefs suggests that the Goldsmith lawyer herself basically thought that all 16 works might have been created under the license, OK?
So you have actually Goldsmith giving up her larger claims, and I think that's really significant. So I think-- first of all, there's some good news is here, which is that-- [CHUCKLE] the court basically avoided some really tough issues, and appropriation art lived to see another day.
So I think there would have probably been a lot more litigation if Goldsmith won on the creation issue. Maybe a lot more appropriation art if the foundation won outright. So here you have the new artists now have to think about it, and maybe that's actually a good thing. And so that's good news.
Now, to me, the kind of really super interesting question is, what is the status of the Warhol works now in terms of their copyright?
The foundation brought a declaratory judgment action to say, I own the copyright in them.
Before the Supreme Court, Goldsmith abandoned her claims in respect of the 1984 and implicitly her opposition to the foundation's summary judgment motion that the creations were fair uses. And yeah, she's going to get some money for this. Although she is ineligible for statutory damages or attorney fees award.
But to what extent is further licensing of Warhol's works encumbered by the photograph? Only licensing to magazines. I don't know. Any commercial use? Well, I think Shyam would say yes. I don't think so.
Because Footnote 12 of Sotomayor's opinion really suggests that if there was a book about the Warhol style, that the foundation could probably use it there. And that was certainly the point or one of the points in the Gorsuch concurrence.
But if Goldsmith is no longer contesting that the Warhol works were lawfully made under this title, good news for museums. They can now display their copies without fear that Goldsmith is going to change her mind and try to take down all the display of the Warhol works.
But must they get Goldsmith permission to make postcards or posters? I don't know the answer to that question. I think another super interesting question is, how much of the Second Circuits and analysis in Goldsmith should be ignored because Goldsmith abandoned all of the claims on which the Second Circuit focused except the 2016 license.
So it seems to me that the Second Circuit might need to issue an amended decision to conform to the Supreme Court's analysis just on the 2016 license, rather than having all that dicta out there about the creation.
OK. Couple of things.
I think it's probably a case that new meaning or message has been demoted. Different purpose, elevated. Same purpose, demoted. Commerciality somewhat re-elevated. But I don't read the decision as basically reinstating the commercial presumption. And remember that the Google v. Oracle case gave very little weight to the commerciality.
Obviously, it's more risky if the work competes, and a finding of transformative purpose is still important. Although it may not have the kind of spillover effects to the other factors as in the past. So that's going to be, I think, a possible consequence of this.
And a few other concluding thoughts:
This kind of use-by-use analysis is something that we haven't thought about before. And so that's actually going to be a thing. So I'll just pose a couple of questions here. But we all like this-- the Wind Done Gone case. That's a really good case.
But could Alice Randall license a movie version of the Wind Done Gone or is this encumbered by the Mitchell estate's copyright in Gone With the Wind. I don't think we ever had thought about that question before, but I think we have to think about it now.
It could be that you just say that the use-by-use has to happen when there was a license as opposed to was a straight-out fair use. But we don't know the answer to this question and it opens up a whole new can of worms that we haven't seen in litigation before.
One of the things I want you to understand is I'm a real big believer in the derivative work. OK. I wrote an article about the origins of it. I scoured the legislative history at least as much as Shyam has. And my article on the quest for the sound conception of the derivative work right is something that I suggest that you take a look at.
But based on that and my reading of the Fair Use cases, I think that there is this kind of sliding scale. Sometimes there's going to be a little bit too far this way, sometimes it's going to be a little too far this way. And we'll just have to go through it.
But how transformative is it? How much you took in relation to your purpose? And to what extent is there interference with a foreseeable derivative work market or conflict with the investment-based rationale for granting derivative works in the first place.
Those things seem to me to be the critical questions in trying to of find that dividing line between those two things. So as I said, something completely different.

[OFER TUR-SINAI] It's OK. Thank you, Pam. Thank you all the speakers. So I'd like to open it up to the panelists now, first and foremost to respond to anything that you've heard someone else say. But also if it's something you want to add, but please keep it brief so that we have some time for questions.
So I see that--
--Shyam wants to respond to Pam. But maybe, too, Lateef as well. So come on.
[SHYAM BALGANESH] Great. Thank you both Lateef and Pam for those comments. So I'm going to I'm going to start by making the obvious clear. So it's clear I disagree, Pam, with--
--your account.
But let me just focus on a couple of the disagreements. One specifically-- because this was sort of foundational-- your claim that the opinion says nothing about derivative works right or virtually nothing of importance.
I think it's hard to understand in light of the fact that multiple times the majority talks about the derivative works right. And very importantly, chides the dissent for failing to understand 106(2). I'll draw your attention everyone to Footnote 17, which is on page 37 of the excerpt. Where she says specifically, Justice Kagan does not understand the implications of 106(2) and would have that be treated under the fourth fair use factor-- necessary implication?
I am doing it under the first factor. So 106(2) was front and center in the way in which Justice Sotomayor was framing the reasoning over here. So that's just the first thing-- I think the multiple times there's a clear allusion, not just to direct substitution, but the licensing effect is an indication that it's about the derivative works.
Now the second one that I wanted to also disagree with is that I don't think we are suggesting for a moment that Warhol is resurrecting the commerciality presumption. But here's where I think commerciality had preceded before. Commerciality had receded into a footnote.
And I think what Warhol does is it says, treat it as important as transformativeness. And here I just really want to reemphasize that I think the key to understanding Warhol is going back and reading Campbell. I think Justice Souter's unrecognized genius in the case lies in the way in which he operationalized the idea that Judge Leval had developed in the context of specific examples.
So just to read, I was talking about this advertisement example. This is exactly from Campbell. This is what he says, "The use, for example, of a copyrighted work to advertise a product even in a parody will be entitled to less indulgence under the first fair use factor inquiry than the sale of a parody for its own sake-- category 2. Let alone one performed a single time by students in school."
So what he's telling you is that a parody, even though it has a -- remember his words -- "natural claim to transformativeness." Does not end the inquiry. You have to assess it against commerciality. And I think that's exactly what Warhol is doing here again, as well.
All right. I have a comment on this, but I'll shut up.
[PAM SAMUELSON] So most of what I think Shyam thinks is dicta-- relying on dicta. And dicta can be powerful, and we'll see how it plays out in the future. But again, the court only ruled one thing which was that the 2016 license was not transformative. A lot of dicta in there. A lot of people are going to try to make as much as possible out of that dicta.
But the court did not reach the transformative, fair use infringing derivative work issue at all. OK. They didn't reach it because the Solicitor General persuaded Goldsmith's lawyer to give it up. OK. So I think that again, I see the beautiful argument that you put together. I just think it's wishful thinking.
[SHYAM BALGANESH] Can I just add one quick--
[OFER TUR-SINAI]Yes, of course.

[SHYAM BALGANESH] I mean, there is literally only one court in the country that can say our dicta is not relevant, and that is the Supreme Court in a subsequent opinion. So the Supreme Court's dicta-- and a large part of Campbell was also dicta. Because at the end of the day, it was remand. But we rely on it. So the dicta is going to be the law for all of the lower courts.
[LATEEF MTIMA] Oh, sorry. How do you--
Is it-- oh, good.
[LATEEF MTIMA] Well, the cool thing I like about this conversation is that I always wanted to see copyright on Jerry Springer.
So thank you both because now I finally got to see that. No-- I actually liked things from each of your perspectives. Because of course, obviously, given the fact that we submitted an amicus brief in support of Goldsmith, we obviously were happy with the ultimate result.
And some of the things that you've pointed out that it now gives us some guardrails. And it says, hey, look, if you want to do some follow-on work, we're not saying you can't, OK? But here are the things to consider. And when in doubt, you should ask permission. And I like that because it opens up room for the original artists.
But I also like your observations, Pam, in terms of let's not read too much into the opinion for this reason. Because I think you're rightly focusing also on the interests of the secondary artists. And I'm mindful of the fact that, OK, this time, the secondary artist was a big guy. But I'm also mindful of the fact that the next time, it may be the other way around.
As I was thinking about this case the other night, something hit me. I said, hey, what if I took Warhol and I said, I don't think orange is enough. I'm going to do tri-color. I'm going to do red, black, and green. OK?
Now, first off, I would imagine many of you would say, if all I did was to take Warhol and just change the colors. My guess is most people would say, I don't think that's particularly transformative. But what if after the fact, I explained to you, and I'm not telling you whether or not I really believe this at the time. Because that's going to be dispositive.
But what if I tell you, well, the reason why I did red, black, and green is because although Prince is very famous for his work, primarily in rock music. Prince, after all was an African-American. And that oftentimes is not focused in on. And red, black, and green has particular significance in the African-American community.
And so that may be the reason why put red, black, and green on it was I wanted to reconnect that part of Prince's identity. Now am I also commenting on the original work? Perhaps. Because maybe I'm saying, why did he take orange? Well, did he take orange in such a way? Is that supposed to mean something and is he ignoring?
So this is why I take something useful. It's the cool thing about being on the social justice side. [CHUCKLE]. Like I said, we're not on the side of any particular artist. We're on the side of society as a whole. So much as I'd like to see more Jerry Springer, I just think that both of you have some really good points.
[PAM SAMUELSON] So I'd like to add something about section 103(a)--
[PAM SMAUELSON] --which is-- and this was actually something that over dinner last night, Lateef and I actually agreed upon, which is that 103(a) has such a potent effect and it's not necessary. So there are other copyright laws, where the second work may be encumbered, but they don't lose everything.
And I can think of rationales for the way that 103(a) is written. But one of the things that the Campbell v. Acuff-Rose and others of the decisions that say you don't have to issue an injunction, don't realize if the court says that a use is unfair and is in fact infringing, you can withhold injunctive relief, but it doesn't stop the automatic operation of 103(a) to say no copyright whatsoever if there's intermingled infringing and non-infringing expression.
And so that's actually something where I would like to see some legislative action to at least make it possible for courts to say that there's enough social value here that we want, in fact, the second work to have copyright, even if it's encumbered by the first work's copyright. And therefore, some compensation has to be paid.
But the many articles that have been written about, oh, let everybody do a derivative work, just provide some compensation. They just don't think about Section 103(a), and 103(a) is out there. It's like a time bomb. And the fact that Warhol created these works in 1984, and we don't even find out that Goldsmith now claims that they're all infringing until 2017, that's a big deal.
[SHYAM BALGANESH] Can I just-- very quickly. I promise to be quick this time.
[OFER TUR-SINAI] Very quickly.
[SHYAM BALGANESH] I want to say I agree with what both Pam and Lateef said about 103 in particular. I'm just not sure that the legislative solution is the right one because the mistake to the extent there is a mistake, comes from the judicial interpretation of 103.
Which applies the penalty rule to derivative works, but not to compositions. By the idea that you could segregate out the two and only deny protection to a part. That not being applied to the derivative comes from a judicial and so. but I agree with you. It has the same--
[PAM SAMUELSON] -- the text of 103 is pretty strong.
[SHYAM BALGANESH] I think it was ambiguous. Anderson v. Stallone says that there are two plausible interpretations and then adopts the Nimmer position. So, I don't think there's a case for saying that it's clear meaning, unless, of course, you're Justice Thomas.
But I mean, OK. So we could disagree on that. But the other thing that I will say is I do think that Lateef's point is a very important one that's gone submerged ever since eBay. And it has an interesting lineage actually, all the way to Judge Leval's 1990 article, which is transformative use, fair use cases tend to be close cases.
And the denial of an injunction is an absolutely crucial component of the judicial arsenal to give effect to downstream creativity. These are close judgment calls. So to the extent that Judge Leval and then Justice Souter and then Justice Sotomayor are saying, courts, engage in this judgment, they're also saying a critical component of that judgment is the remedial elaboration that you have on the back end.
And I just I don't think that has been sufficiently robustly dealt with. I remember I went back and listened to the oral argument in Campbell v. Acuff-Rose. It turns out there was only one Justice who had read the Leval article at oral argument, and it was Justice Ginsburg.
And at oral argument, this is raised, but not the injunction point. And her exact response to the lawyer is, "Oh, I see you've read Judge Leval's article. But you take the sweet, but not the bitter from him."
And I think there was a recognition early on, and Justice Souter incorporates that into a footnote. It's gone under the radar. And I think it is an important way of thinking about equity between the parties.
[OFER TUR-SINAI] Well, thank you all. And just to spur the discussion a little bit further, I want to touch upon the issue that you all touched upon, which is the focus on the particular licensing transaction rather than the creation of the works.
And I want to bring a question which I want to hear your thoughts about. So the role of transformativeness plays when this is the type of inquiry that we are making. So I guess my broader question for you is, how do you see the holding of the case? Is this a decision about transformativeness at all considering the focus on the commercial licensing transaction? And I'm sure we have differing opinions on this question here. But I guess if we're not comparing the works, perhaps "transformative" is not even the right term to use. Maybe "different" is a better term to use. What's transformativeness have to do with anything that happened in this case?
And on a related note, I wonder what do you think about what I view as a gap between the narrow holding of the case, considering the focus on the license transaction. And the reasoning, which is extensive and it has become even more extensive, not to mention intensive due to the back and forth between the majority and the dissent.
And could this result in a misreading of the holding by lower courts? I mean, I gather we have to wait for the next Supreme Court case. But when will we have the next Supreme Court case? So I'm concerned perhaps that the two case that people mentioned before is already a signal for what's coming, or at the very least, if not a misreading by the lower courts but an unintended chilling effect on follow-on creativity.
And to the extent you see a problem here, do you think that we academics and lawyers might have any row in mitigating such a chilling effect? So if anyone wants to address this. I'll be happy.
[PAM SAMUELSON] Well. So I think that my previous slide actually had my thought-- can you just go back one thing?
I think that there is a kind of shift in emphasis that I think is reflected in the Goldsmith decision.
But I see it as basically having retained transformative as a critical element. And they didn't abandon that at all. But we're going to pay more attention to different and same purposes-- the extent of transformation.
And how much commercial is there? I don't think it's as weighty as the transformative thing. But we'll see what happens. I think I've taken a look at the cases that have followed this so far, and in the Thomson Reuters case against Ross, the first of the generative AI cases to make it to a decision.
The lawyer for Thomson Reuters tried to make a great deal of Goldsmith. And the court said, no. To me, this is more like the Google case. And so I think the Google case maybe just went a little bit farther on fair use than anybody really expected.
And maybe the Supreme Court cuts it back a little bit in Goldsmith. So you have to basically even it out, and basically say, don't overemphasize this one, and don't overemphasize this one. Let's try to find a middle ground.
[OFER TUR-SINAI] Does anyone else want to respond?
[LATEEF MTIMA] Yeah. Well, I'll just say quickly that I think that certainly, one thing you should not take from this opinion is that the court is in any way discouraging transformative activities. because the whole opinion is really saying, OK, the more transformative the better?
The more transformative, for example, the less we have to worry about the commerciality of it. The mere fact that it is highly transformative doesn't mean we ignore commerciality. And so the more transformative, the better ground you are on.
And so I think that's one thing for sure that there's no way that we're saying we don't want follow-on uses. We're saying we want them in closed cases. We want you to ask permission. But ultimately, that is the direction that we want artists to go.
[SHYAM BALGANESH] I would just add very, very quick note. I have no doubt that the opinions themselves are going to cause a significant amount of confusion. I think that's part of the reason why you see the concurring opinion by Justice Gorsuch saying, here's a little bit of a blueprint of how to understand the majority.
But I think there's no doubt that that's going to have multiple readings and we see some of them over here. But on the transformativeness question though, I think it's important to recognize-- and this goes all the way back to Judge Leval in 1990. That transformativeness was not meant to be the core fulcrum behind the idea.
I keep forgetting, and maybe he'll tell us the reason. The title of the article was "Toward a Fair Use Standard." It was not "transformative use." There were multiple other components that were built into that standard, including justification, which figures very, very prominently?
Justification is built into the idea of the standard. So to take the idea of transformativeness and then understand it in the narrow sense of a derivative work, that's where I think the mistake lies. And I think we see this, for example, in his own decision in Google Books, which was not necessarily transforming the content but it was in the purpose that was seen to be transformative.
So I think there's not a clear connection to the work itself that is needed each time.
[OFER TUR-SINAI] OK. Thank you so much. We'll take some questions from the audience now. Does anyone have questions to any of the panelists, Jane?


[AUDIENCE MEMBER] OK. I think that you agree that transformativeness now addresses the use and not the work. And I think Pam is absolutely right to concentrate on section 103(a). However, I think when you look at the text of 103(a), you end up with a situation that is highly problematic, although not the same one that you suggest.
Because 103(a) says, "Protection for a work employing pre-existing material in which copyrights exists. Subsists does not extend to any part of the work in which such material has been used unlawfully, which leads to the following problem..."
I completely agree that the Supreme Court didn't say anything about whether any of the additional silkscreens were fair use or not. So suppose the Warhol Foundation now wants to register those silkscreens. Well, what about 103(a)?
We don't know whether the silkscreens have been used unlawfully because there hasn't been a claim, at least for the moment. We don't have a ruling as to whether any of the uses of the silkscreens other than licensing for a magazine are our lawful uses or not lawful uses.
So what are you getting a registration for? I think this is highly problematic. And another thing that's problematic is that if you don't know whether you have a registration, you also don't know with or without a registration if you have what the basis of your copyright interest is.
Let's say the Warhol Foundation wants to license some use-- not magazine uses. But other uses-- coffee table book, whatever. Well, can they do that? So I think that we have a whole lot of uncertainty based on focusing on the use rather than the work.
Having said that, I always found your position problematic. That if the work is fair use, then you can freely exploit it. But if it's fair use because it is, for example, a non-commercial educational use, to then turn around and say, well, it's fair use. So now I can do anything I want with it, is also problematic.
So I think that the reason why a use has been deemed "fair" has to play into what the creator of the secondary work can do. Finally, I'm not sure that it's completely devastating not to have a copyright in your secondary work that-- for which some uses might not be infringing. Because that's basically the system under Section 115.
You have a statutory license that gives you the privilege to do a cover version, but you don't have a copyright in the cover version unless you negotiate with the composer.
[PAM SAMUELSON] Just to respond briefly. I think what the use-by-use fairness thing makes us do is think about some things that we haven't thought about before. And I actually think it's a novelty. There may be some ways to try to refine it.
But I think that for the most part, people have assumed that if it's fair use, that you can at least exploit it in the way that you would exploit that work normally.
And so I don't know that Alice Randall ever tried to grant a license for a motion picture version. But that just struck me as an example of something where I think we wouldn't have thought about it before.
I think we have to think about it now. And so that's going to be-- I think, a new line of things. And I agree with you that there can be some equity issues here. It's just that it's just unexplored territory.
[SHYAM BALGANESH] Can I just jump in? One quick thing that Jane's comment raises, which I think ties into the core argument you're making, Pam, which is I think a large part of this can, there's a direct line from here to the Neely case that the Supreme Court just took cert on a couple of weeks ago; which is look at the large part of what was going on with the original creations by Warhol. They're way back when.
So the only thing that would have triggered a claim, regardless of what jurisdiction is a discovery rule-- figuring out when its existence was. But then we have the circuit split of what can you recover only for the last three years? If nothing had been done with those additional silkprints, then there's no basis to bring them in.
And I can't but help think that must have played some role in the SG's intervention, rather than just limiting it on for a completely unstrategic purpose. And I think maybe we'll get some resolution around that. But I think that was crucial-- the fact that there is now a statute of limitations type situation that you can only have a three year look back.

[OFER TUR-SINAI] I think we have time for one more question, unfortunately. So please.
[AUDIENCE MEMBER] Thanks. Oh, yeah. Professor Samuelson before I ask you my question, I think I should honestly disclose that some years ago when I was a freelance photographer, Lynn Goldsmith was my agent. But that's not going to affect my question.
You mentioned that the Solicitor General's Office was able to reframe the entire proceeding. So this is my question, unlike in Cariou v. Prince, where you had a similar situation in that there was a photographer and then there was a so-called appropriation artist who took his work and made alterations.
Here it's a little bit different because Andy Warhol himself was also a photographer. And in fact, I used to see him all the time with his camera taking pictures. So instead, he could have had the opportunity to photograph prints on his own-- take his own pictures, and then make his own silkscreens of that.
Lisa Blatt did not argue this before the Supreme Court, because I guess-- because of, you pointed out that the Solicitor General re-framed the case. But do you think that affects your thinking about this case at all? And anyone else can feel free to respond, too. Thank you.
[PAM AMUELSON] So I think the issue of the 1984 creation was a genuinely hard one. And the fact that Warhol sort of wore more than one hat, I think is an interesting sidelight to it. But there was both a question of fairness at the time.
I think Eva's talk in the previous session said artists reference license doesn't necessarily mean that whatever is produced is an infringing derivative work. And so there was enough ambiguity about I think the significance of that license.
And again, Warhol was not a party to that license. So if it bound anybody, it bound Vanity Fair, not him. And Goldsmith's lawyer in brief-- merits brief says maybe all 16 were actually created under the license.
I've always really assumed that what happened was that Warhol got the photograph and did the drawings just to get to know the face. And then said, OK, now that I know the face, I'm going to do several iterations so that I can give Vanity Fair a choice about do they want this one for their article on the fame thing or do they want that one?
And I think that's a reasonable interpretation of what happened. We obviously don't know because Warhol has been dead for a really long time. But it seems to me that it was plausible that's sort of what happened at the underlying thing.
And if that's true, then it looks to me like all 16 were authorized derivatives. But they're authorized derivatives now encumbered by Goldsmith's photograph and how encumbered we'll have to find out.
But I'm hoping that actually there'll be a settlement when it gets remanded. Because this is the right outcome. It was probably the right outcome at the get-go. But then we wouldn't have had this fascinating case.
[OFER TUR-SINAI] So we will get one final question from Judge Leval.
[THE HON. PIERRE LEVAL] How do I make-- is this working?
[PIERRE LEVAL] I had something to say about 103(a), but I'm not going to trespass on lunch because I'll have the opportunity this afternoon. So--
[OFER TUR-SINAI] OK. We appreciate this.
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