Shira Perlmutter Discusses Fair Use and Copyright
Perlmutter also shares perspectives on Warhol vs Goldsmith
At the 2022 International Digital Media Licensing Conference (IDMLC), United States Register of Copyright Shira Perlmutter and her colleague Associate Register of Copyright Robert Kasunic discussed a wide range of topics, including fair use.
Here’s an excerpt from the conversation, which was moderated by Leslie Hughes of iSPY Visuals.
Fair Use and Copyright
As Perlmutter and Kasunic discuss, a big challenge in fair use is determining how to allow transformative works to be created without removing the rights of creators to control derivative works.
Perlmutter asks whether, if a court decides that a use is transformative, that also makes the use by default a fair use, or whether it should be one factor. These are challenging questions that courts continue to grapple with.
Warhol v Goldsmith
Perlmutter also weighs in on the Warhol V Goldsmith case, which deals with fair use and is currently before the Supreme Court. DMLA submitted an amicus brief in the case, regarding the current licensing market for images at art reference and how a too broad interpretation of what uses are considered transformative and non-infringing could impact the rights of DMLA members.
Rather than the more common scenario of an artist taking issue against another entity, Perlmutter shares that this case is interesting in that it pits two artists against each other. Perlmutter acknowledges both the importance of artists making a living from their work, and the importance of derivative art in advancing creativity.
Perlmutter says that the facts of the case also make it unique, in that Warhol’s use of Goldsmith’s image had a similar purpose to Goldsmith’s use, and those facts impact how the case might be considered.
Impacts on AI and Copyright
As Kasunic adds, the findings in Warhol V Goldsmith could have impacts on open questions about generative AI and copyright. Specifically, Kasunic says that the decision could impact whether “the content fed to AI” systems would be covered under fair use, and whether using third party content to train AI is a lawful fair use.
Although fair use is a doctrine with a long precedent, modern technologies are showing that questions of fair use are still highly relevant today.
Disclaimer: Nothing in this article is intended to provide legal advice. Consult with an attorney for any questions regarding copyright or legal issues in your own business.
For more excerpts from the 2022 IDMLC, visit the DMLA’s YouTube channel.
Written by DMLA Education Chair Thomas Smith. Smith runs Gado Images, a content agency, and blogs about generative AI at SyntheticEngineers.com
