PICTURE THIS: Applying the Fair Use Doctrine to Documentary Films after Google/Oracle and Warhol

Abstract

The genre of documentary films has grown in both importance and audience reach over the past few decades, in no small part because of filmmakers’ reliance on the copyright doctrine of fair use. The expansion started after the passage of the 1976 Copyright Act and accelerated in the wake of the Supreme Court’s unanimous, landmark 1994 decision, Campbell v. Acuff-Rose Music, Inc., concerning a parodic rap-music send-up of a classic rock ‘n’ roll song. Over the years, a consistent body of case law evolved that provided a basis for making edit-room decisions about third-party content that filmmakers and their legal counsel could reasonably expect to be protected as fair use. Twenty-seven years later, the Court’s ruling in Google LLC v. Oracle America Inc. reaffirmed Campbell’s principles and the case law on which documentarians relied.However, the Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith raised important questions about the proper application of the fair-use doctrine. The Warhol case involved the licensing of a work Warhol based, in his signature style, on Lynn Goldsmith’s photograph of Prince, the iconic musician and performer. After the Andy Warhol Foundation (“AWF”) prevailed in the district court, the Second Circuit reversed, rejecting the claim of fair use. In its petition for certiorari, AWF raised only a single question: whether the Second Circuit erred in holding that the first statutory fair-use factor prescribed by section 107 of the 1976 Copyright Act favored Goldsmith.