Fair Use for Artists

Fair use has long been essential to artistic expression. That is a core theme of a brief we filed today on behalf of The Robert Rauschenberg Foundation and the The Andy Warhol Foundation for the Visual Arts in Google v. Oracle. The litigation, which is hailed as the “copyright case of the century,” involves a high-stakes dispute over the use of source code in smartphones — but it could also have significant implications for the doctrine of fair use as it applies to artistic expression. We urge the Court to be careful not to implicate fair use in the arts in this case. 

First, we lay out a variety of examples demonstrating that the use and re-use of other creative works are often vital to the visual, literary, and musical arts. For instance, the painter of an iconic portrait of George Washington, “borrowed freely” from other models — and even the designs of the Supreme Court building itself are “virtually identical” to prior designs. The visuals, reprinted in the brief, really are worth a thousand words:

We also address the First Amendment protections and public interest issues that undergird fair use, explain how software APIs are quite different than the arts, and argue why the Supreme Court should decline the invitation to wade into other areas of fair use law that are not properly presented. Carolyn Shapiro, who co-authored the brief, remarked, “the bottom line is that, whatever the justices choose to say about fair use in the software development context, they should be careful not to suggest that the same analysis necessarily applies to the arts context. The Court has made clear in the past that fair use analysis in the arts requires close attention to a case’s factual and artistic context. It should take care not to sweep so broadly in this software case that it inadvertently disrupts the work of an array of creative industries and professionals.”