To read Sandra Enimil’s Blog from Harvard’s celebration of Fair Use Week that is referenced in this podcast episode, go here: https://blogs.harvard.edu/copyrightosc/2023/02/22/fair-use-week-2023-10th-anniversary-day-three-with-guest-expert-sandra-aya-enimil/

Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome.

Sandra: Da, da! That's the trumpet sounding.

Sara: Very exciting. It's the tenth anniversary of Fair Use Week. I'm super excited, and I'm even more jazzed because we have a pending Supreme Court case.

Sandra: Very exciting!

Sara: Tell us about it. Tell us what you think about it. What do you think about it?

Sandra: Alright! So the case is Warhol v. Goldsmith, and it is a very exciting case, I mean. There's the thing of there being, two artists, you know, who are being, you know, not being pit, but they are pit against each other, and a third artist, you know, is the subject of the photograph of which you know one of them, you know made it.  I think it's a really very beautiful photo of Prince.

And then it became an Andy Warhol—Andy Warhol treated series of full of photographs and paintings, and whatever. The original photographer, Lynn Goldsmith, then, you know, finds out that you know this image has been “Warholized” basically. And you know, contacts of Warhol Foundation to say, this is my image using my image. What's going on? Nobody's asked for permission. Nobody has a license, and the Warhol Foundation says it's fair use. Actually, we're gonna go to court and get the court to say that it's fair use. We're just, you know, you know. You go away. Goldsmith does not go away, and she, you know it, you know, pursues it. And now we're at the Supreme Court waiting to see, like what the court is gonna say about is this fair use? You know we heard, I think, at in the hearing, the oral arguments we heard, you know, transformative being tossed around. We heard questions about why this particular image? Why didn't Warhol, you know, take his own image. Interestingly, you know, we don't hear anything about Vanity Fair, who they license the image, and then they just gave it to Warhol and said, Hey, do your thing with this and he didn't like not even mention anymore. That is like, so how that works. Okay? They license it right?

Sara: That's an interesting point, because they licensed it for the 1985 version.

Sandra: Right, right.

Sara: They knew they didn't have another license, but you know we know why, right? It's the deep pockets, and they're going for the deep pockets and Warhol made all the money off of it right?

Sandra: Like, who is right, who has a deep pocket? Right? Yeah, Warhol made all the money.

Sara: Not Vanity Fair.

Sandra: Warhol made all the money. Yeah, yeah. So yeah.

Sandra: So you know I and I still like it not even sure how I feel about the whole thing. I am, you know, really kind of like is, this is, is, is it not? Is it fair? Is it, you know, like thinking a lot about it? And I, it's actually it's like this, I'm going into a tangent. So apologies.

But Kyle Courtney host, the Harvard's that has a fair use blog for on Harvard's system, and you know, every year he asks folks to write something about fair use and I was just like kind of struggling with what I wanted to write about and decided, okay, I'm gonna write about this case. But kind of not really. So writing about something that's real tangential. Again, and it's about the use of likeness. So it's about it's basically about Prince. It's about subjects and photos, and they're people's ability to say, yes. So certain things happening with images that you know contain their likeness and then I'm gonna find a way to loop that back around the fair use at some point tonight, while I'm you know, finishing it up and crying. You know as you do as a forget procrastinator. But I just you know I've just been thinking a little about that about the use of his likeness, and how this is the set. It's the center of the dispute, but he's not really even part of it. Much like Vanity Fair. Like he's not even part of this, I mean the considerations around him is not really a part of it.

Sara: Yeah. The part where I saw him come into it the most frankly was during the oral argument, where there were weird ways, one where people were joking about whether they, the Supreme Court justices, listened to Prince. Like what? And then also because one of the arguments about the transformative nature of the work was that the original photograph was supposed to be vulnerable right, and that the new photo by Warhol was meant to like be like pop culture and like commercialism and all this. So that was like the transformativeness arguably.

Sandra: Right and that's what the you know. So his side is trying to try to make that argument of that. They needed this photo. They need because it's an early photo of him. And they needed to use that, because, of course, the common is like, why can't you use to use anything else or take up another photo of him? Or you know as Warhol has done in the past. He's taken his own photos, and then, you know, done his. The extra process that he does to things, or paid for licenses, which he's also done before. And so they're like, well, why this photo? Because you could have done anything else. And so that, yeah, that was their response was that it had to be this one because of the reasoning of the original, and how it looked and presented.

Sara: But I, okay, I I know you're presenting it, as this is what they're arguing.

Sandra: That's what they're arguing.

Sara: But like the extent that they made the comparison, I really bought this comparison, which was they made the comparison to this Campbell soup cans right and saying like, Oh, well, why do you do it? Of Campbell's soup. He could have done it for Cheerios. He could have done it. It's like, yeah. But he wanted to do that brand, because that was the brand that was like comfort comforting like, you see, it. And you're like your kids sick, and you gotta buy them like the Campbell’s soup right?

Sandra: Yeah.

Sara:  And like that was the that was what he was going for, and same thing like he could have gone for another image could have gone for another artist.

Sandra: Yeah. Yes.

Sara: But he didn't want to. This is what he was doing. And like also, are we seriously going to start telling artists like Warhol? Which brand they should critique like a you know what I mean like it's I don't know like I'm not. I don't wanna be in that business.

Sandra: I don't know. So the thing that's like awful, you know, I cause I like, I said. I have been all over the place with this, too, and like listening to a bunch of different commentary about it.

And I'm just like, you know, Warhol and Goldsmith. They're both white, but one is a woman, and one is a man, and I like thinking about like the dynamics of that. You know that he feels like he could just take this thing from her there, you know I'm you know. That's in there and then also, like, you know, Prince, like I said, he's just he's just there, kinda you know, like he's not, you know, not even getting like the prints like it's Prince kind of thing. It's just he's just there, you know, as the black artist, you know. So I just I don't know. I have like so many things that are circling around in my brain, rattling around.

Sara:  I like that. Our, I mean, I hadn't thought of that point of like the gendered point, and also the fact that, like, you know, she really didn't get it paid a lot right.

Sandra: No Nope. She didn't get paid. She didn't get paid a lot, and then it's like when she goes to say, Hey, what's happening here? There isn't like, Okay, maybe. Or maybe there was I don't know we don't know about. I don't know that, you know. They didn't offer her something. Maybe they did. But you know what we know from like the filings that they came and said, we want the court to tell us that what we did was okay. And I'm just like I don't know. I'm kind of struggling with that, you know.

Sara: But that's where. Okay, yes, but that's how every good, fair use case happens, isn't it? I mean, like.

Sandra: You know, I know I'm on pins and needles and like know how it, how it, how it's gonna end up right? You know.

Sara: Well, I also wonder. And I really, really do wonder this, how it could or would impact libraries at all. And I said this about the second circuit opinion, where they said, like, you can't change art into art. That's not transformative and my response to that is well, you know, libraries aren't really in the business of making art so. But if they start making new transformative decisions, right decisions about the purpose and character that could impact us a lot. So it depends on what they have to say. Right? I'm back to. It depends.

Sandra: I mean, I think, like the how we sometimes get stuck with transformation is like, we think it has to be like a whole new thing. And I think for a lot of the work that we do. You know. Obviously, it's not everything, but for a lot of it. It's not transformative. It's like kind of working in the same direction as the original thing. But you know we have a smaller audience, or we're only using this. A portion of it, you know there are a number of other things that really help us if we don't have that transformative piece of it from the first factor. But yeah, I also don't know how it will impact us. We're not alone in that.  I think in a lot of the amicus briefs that kinda went around, you know, at least from the library perspective. It was like, we're just concerned. We don't. We're not saying which way to go, but you know we're watching.

Sara: Yeah, it's kinda like, do no harm right like, do no harm.  Supreme Court like you can decide what you need to just leave us out of this.

Sandra: Yeah, please please don't ruin the Fair Use part and make it very against, but worthless to libraries.  Do I think, you know, there's definitely especially with, like, you know, this particular Supreme Court, like, what are they gonna do you know? And the thing about oral arguments is like it doesn't give you anything like you just are listening. And it's interesting and blah blah blah, but they never. They're not really showing their hand.

Sara: Sometimes they do, but I felt like in this case it was hard to tell. It was very hard to tell.

Sandra: Sometimes. Yeah, yeah. It was hard to tell. It was hard to. Yeah. It was hard to tell from this from these arguments, though very interesting, though.

Sara: Yeah, it'll be. It'll be super interesting, I mean, no matter what happens, I'll be interested to read the case and to try to understand it, and then to like, look at the tea leaves and try to see what impact it might have it's it will inevitably have some impact. Because I mean, look at the Campbell. The last case that we had with the Roy Orbison on fair use so long ago, I mean, that has had a massive impact.

Sandra: Yeah.

Sara: So I do agree with the first, do no harm. Yeah, but you know, yeah, I mean, cause you know, Campbell give gives us, you know, the articulation of transformation.

Sandra: And but you know, I think it's interesting that we go to the Supreme Court. It gives us transformation. But in hip, hop, you know there was where it should have been like a whole bunch of folks like, okay, so we can sample and like the things. And that actually didn't happen. How they go interesting. Yeah, cause you would have thought that people, you know, we transformative. This, you know, came out and helped a lot of other at industries along with the music, industry and hip hop in particular, where it shows have been the case where. Now rely on and say and talk about. I'm making a comment about this, so I can go ahead and sample this. It didn't turn out that way and went a different tact, which I think is really fascinating.

Sara: Yeah. I wonder why that is. Maybe that's a difference in the community.

Sandra: Oh, yeah, for sure. And you know, maybe one day when I can invent more time, I'll write something about that. I mean, a lot of people like thought about it and mentioned it, but I really wanna know, like, why, why not?

Sara: I think you should do that sooner rather than later, for a special issue that's coming up, that I might know something about. I see what you're saying, and like I've had conversations with. So a friend of mine is married to a jazz artist, and like that's another area where, like jazz artists like, they steal from each other all the time, and nobody like gets mad about it, because it's just part of the culture. And that's the culture of it, right?

Sandra: That's the culture of it. And yeah, I definitely think there is. There's something interesting about it. I think there's something interesting in, you know. Now we have, you know, mash-up artists. And yeah, some of them definitely license. And you know they are. You know they are licensing things, but not all of them. And they're not getting in trouble.

Sara: Well, this has been so fun. And actually, I love the way this conversation went, because it was like just it just turned many ways as one does, and I I hope you all enjoyed listening to this podcast. Sandra, thank you so much for joining me for fair use. Week! It was such a blast, and may all your fair use adventures be risk-free.

Sandra: Amen! Thank you.

Sara: I really appreciate talking with you. Thank you.

Sandra: Bye, everyone.