The Supreme Court is considering a lawsuit between rock and roll photographer Lynn Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works. The question before the Court in Warhol v. Goldsmith is whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constitutes a fair use. Underlying the case are core intellectual property questions about the nature and scope of the fair use doctrine.
Following oral arguments on October 12, Zvi Rosen, who filed an amicus brief in the case in support of the respondent (Goldsmith), joined us to break down the case.
- Zvi Rosen, Assistant Professor, Southern Illinois University School of Law
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
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Jack Derwin: Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of Practice Groups here at The Federalist Society.
Today, we’re excited to host a Courthouse Steps discussion on today’s oral arguments in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, featuring Professor Zvi Rosen.
Zvi is an Assistant Professor of Law at the Southern Illinois University School of Law. Previously, he served as a Visiting Assistant Professor at the Maurice A. Deane School of Law at Hofstra University and as a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. He’s also spent time at the United States Copyright Office and in private practice, and he has written extensively on the development of modern copyright and trademark law. You can view his full bio at fedsoc.org.
After Zvi’s remarks, we’ll go to audience Q&A, so please enter any questions for him into the Q&A function at the bottom right of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion on today’s program are those of our guest speaker. With that, Zvi, the floor is yours.
Zvi Rosen: Thanks, Jack. So good afternoon, everyone on the afternoon after the argument. It is probably the most consequential fair use case of at least the past 30 or so years—29 years, for those who are counting.
I will note at the outset, it was an interesting argument, and you’re seeing the future of the Supreme Court argument process, perhaps, where the argument went for almost two hours, even though it was only allotted for 70 minutes, with the justices being called on sequentially. Also, the Court only let 19 people in from the lawyer line [inaudible 1:46] limiting much more attendance in person, which I thought was interesting.
Well, kind of a little bit about this case—Warhol, of course, being the Andy Warhol Foundation for Visual Arts v. Lynn Goldsmith and her licensing agency, which licenses photographs. So first, I’ll talk a little bit about the photo. In 1981, Lynn Goldsmith got the assignment to take a picture of the artist Prince, then still fairly early in his career. And she wanted to capture what she saw in his [inaudible 2:20], vulnerability, and shyness. She took this picture in 1981. She only took a few shots of him before he left early. All that was fine and well, and Goldsmith’s an accomplished photographer, especially with a lot of rock-and-roll, among other work. And [inaudible 2:35] licensing business. So this entered a staple of her copyrights, all fine and well.
A couple of years later, in 1984, Prince’s star had really risen, and Vanity Fair wanted to do an article about how he had become a major celebrity and also some the [inaudible 2:52] associated with that. So I read an article called -- and so, they said, “We need an illustration of this.” They bought a license from Goldsmith to use this photograph as an artist reference. Unbeknownst to Goldsmith, but within the terms of the license, they then hired Andy Warhol to do a Warhol version of this, which he did. It was published in 1984 with article “Purple Fame,” around the time of the movie Purple Rain, of course. This was near the end of Warhol’s life. He died in 1986.
But unbeknownst to, certainly, Goldsmith, Warhol created 15 other similar drawings of Prince in a so-called Prince Collection -- or Prince Series, rather. And these were with AndyWarhol’s property. Warhol died in ‘86. These were all subsequently sold off to private collectors for large amounts of money. Even that didn’t bring the lawsuit. Goldsmith was apparently unaware of these uses of Prince’s -- of her photo to create the Prince Series. That all changed in 2016 when Prince died.
Condé Nast wanted to run a special commemorative issue, and they requested permission to have the Purple Warhol that was used in ‘84. Now, I will note, of course, I believe Vanity Fair is a Condé Nast publication, but nonetheless, they realized they needed a license to print it. The Andy Warhol Foundation said, “Just so you know, we have 15 others in our collection of copyrights. Would you like to use a different one?” And they instead used the Purple -- the Orange Price, rather -- this one—The Genius of Prince. Warhol found out about this use, and that began this lawsuit.
Now, everyone agrees -- so the Warhol Foundation was paid $10,000 in 2016 for this; Goldsmith was paid nothing. Everyone agrees that this is fundamentally a copy, not just obviously based on, but literally, you can see Warhol used the photograph as part of the silk-screening process to create the whole Prince Series. So it’s not simply inspired by; it’s literally copied from the photograph. Question then becomes, is this a fair use?
And so, the lineage of fair use goes back to, really, the 1830s. And I should say --I wrote it down because the brief in this case had focused on some of the early history of fair use, and also the derivative work right, which we’ll talk about in a little bit. Section 107 of the copyright law says that use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research—however, those are only exemplary, you see, for instance, “such as” is a keyword there as well—is not infringement of copyright. And then the statute sets forth these four factors—and these are not exclusive factors—and those factors shall include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or a copyrighted work.
And you have few cases that started interpreting this, but the key one really is Campbell v. Acuff -Rose Music. The case happened in ‘93, where you have the use of Roy Orbison song “Pretty Woman,” and then the rap group 2 Live Crew created, effectively, a vulgarized version of that for their album As Clean As They Wanna Be, ironically created [inaudible 6:26] Walmart would not run their main album As Dirty As They Wanna Be. The Acuff-Rose Music—which I believe was Orbison’s publisher—sued Campbell [inaudible 6:40] saying it was -- they had made copyright infringement. The U.S. Supreme Court held that the use by Campbell was fair use because it was parodic. In particular, they said the key thing about a parody is that it has to use the entire work in order for its essential message of parody to be understood and that the Court would look at whether there was a transformative meaning or message to the use. So as happens, perhaps, all too often with Supreme Court opinions, courts saw this language and may have over-applied it, and that’s certainly what Goldsmith is saying. The parody is one thing, but regular uses are another.
And there were a series of cases in the Second Circuit, notably Cariou v. Prince—a different Prince—which stretched the meaning of transformative use and the meaning or message test. The district court, thus, applied the Cariou case and held that because the use by Warhol conveyed a different meaning or message than the Goldsmith photograph, it was a fair use.
The Second Circuit disagreed. The Second Circuit said Cariou had been bound by what they called the high-water mark of the extension of fair use, and they said, no, it doesn’t go quite far. Transformation is an important consideration as part of a purpose and character of the use, but it can’t be the alpha and the omega of the copyright inquiry. And so, as a result, the court found for Warhol. I will say, after the Second Circuit held -- not for Warhol. The Second Circuit held for Goldsmith. The district court held for Warhol.
After the Second Circuit opinion, the Supreme Court held the Google v. Oracle case, holding Google’s use of Java—the new Java programming language—was a transformative use. Warhol went back to the Second Circuit and asked that they reconsider their judgment in light of new precedent, but the court stayed where it was. They added a new section to the opinion, saying that the Google case is really about software, not about transformative use, generally.
And interestingly, I didn’t see a lot of mentions of Google v. Oracle at the Supreme Court, which I found rather interesting. It was only last term that found the work to be transformative, but it’s a very different sort of usage.
So [inaudible 9:08] before the Supreme Court, the question presented is whether the Supreme Court was right to use an objective test, as they put it, as opposed to a meaning or message test. The real question before the Supreme Court is what weight to give transformation and the meaning -- whether the work communicates a new meaning or message. I do think there’s a general sense that some of the cases that just said, “These are a new meaning or message; good fair use,” are going to be overruled, and we’re going to see a new standard, which narrows fair use some but probably not in a way which is necessarily going make Goldsmith happy. So I don’t necessarily know how it’s going to go. I will say, also, the actual question presented only looks at the first aspect of the fair use factor—in purpose and character, it’s a use—and whether or not it’s transformative.
The other factors, which the Second Circuit held, also favored Goldsmith, were -- may well not be addressed by the Supreme Court. You had a long discussion of whether they were even briefed, and counsel for Warhol said they were not. So I’d be surprised if you have complete use of fair use. I think it’s just probably going to have a remand with a new standard for transformation and how to apply it, after which, I kind of suspect Goldsmith will probably win because the [inaudible 10:33] all the other factors, but I’m not sure.
So one of the key questions here is what uses, exactly, are we talking about? And part of that is how do we define works and uses? In other words, what -- when we talk about a fair use, are we talking about the creation of a new work that’s fair use, or are we talking about each individual use of the work? And there’s a -- some people have argued that it looks to whether or not a work is a fair use, and it’s done. I think that’s difficult if you look at factor four, which is a really specific on the effective use upon a potential market. It’s difficult to know, necessarily, of [inaudible 11:19] creation of the alleged infringement work. But at the same time, if every time you create a work that’s fair use, you have to rerun the fair use factors—at least people have argued—that’s going to be a major drag on the creation of creative uses.
On the other hand, of course, you can easily imagine that not saying that fair use [inaudible 11:41] issues leads to absurd results, and, for instance, going back to “Pretty Woman,” let’s say use [inaudible 11:49] and the opening guitar riff, which I believe is the same in Campbell’s use. Pretty obviously, you can’t sample the Campbell’s song to get a recording of the opening guitar riff from “Pretty Woman,” even though it’s the same thing. Pretty clearly, you’d have to go back to the original because you aren’t using the transformative work for a transformative purpose. But how, exactly, that means is going to vary, and the Court is going to have to look at that.
Another interesting question is how, exactly, is a meaning or message test for transformation [inaudible 12:20] to derivative works? And this is where we get into an interesting question of what, exactly, a derivative work is. Generally speaking, the copyright law gives a series of exclusive rights. It’s a right to make reproductions, make distributions, performances, and to create derivative works. Derivative works, for instance, are a dramatization, a sequel, a translation, a supplementary work, etc. And in terms of how [inaudible 12:55], there’s a lot of concern that the meaning or message test really eviscerates the exclusive right to create derivative works. And in particular, [inaudible 13:04] 17 USC 101, the definition of derivative work is a work which alters, recasts, or transforms the original work. And so, if your test for fair use is whether or not it transforms, but you have—and I will say “transform” does not appear in the statute—but whereas, you do have a statutorily defined right to create derivative works, where the word transformed is used, you’d think that there would be preference of following the statute and to say that transformative works are works which one cannot create unless they are otherwise a fair use. And it’s, frankly, going to be a real tightrope.
It doesn’t help, by the way, that we still -- even though we have this definition of works that adapts transformed or recasts original work, we don’t really have great definitions of what derivative works are, and not a lot of cases that explain, what they call, substantial similarity—AKA non-literal copying—is different from exclusive right of fair use, and even the legislative history’s not that helpful. There are some cases that tried to define it, but the definitions are generally insufficient. A case that tried to say, well, if it’s in a new medium, it’s a derivative work, but their derivative work is like sequels, which are in the same medium, so it doesn’t seem to apply.
We had some really interesting questions from the Court about whether purpose and character of the use are the same things. So you’ve got factor one—the purpose and character of the use. In truth, copyright lawyers have, generally, read these terms as being [inaudible 14:49] the magic phrase and not read them separately. But the Supreme Court was saying, “Well, maybe we should look at them separately.” And clearly speaking, the purpose was not transformative, but was the character transformative—and splitting those words to look at two different things—which would, in turn, put transformative use more in the character of the use rather than the purpose of the use. That, as far as I know, has not really been discussed among copyright lawyers. Be interesting to see if that gains traction.
Another practical question the Court was really looking at is what sort of evidence is fair for meaning or message, and how would you figure it out? This really gets to the concern of making judges into art critics, which has been a concern for a very long time. It seems we have a Bleistein v. Donaldson lithographic case, 1903, where Justice Oliver Wendell Holmes Jr. made very clear that a judge in copyrighted works should not assign themselves a judge of quality of a work, only whether or not it’s being copied. And that was very much repeated in Campbell v. Acuff-Rose. But [inaudible 15:58] de facto going to be asking questions of -- as Campbell says, “You have to know if it’s a parody or not.” The judge has to make the determination. But there’s a real concern that by making judges the determinants of meaning or message, we’re making judicial role too large and adding too much uncertainty to a case.
You had an interesting mention, of course, going to Warhol of whether Warhol’s use of Campbell’s soup cans is a fair use or not. And a question, “Well, he could have made Cheerios’ boxes, for instance, would that have conveyed the same meaning?” And I think the -- as may be well noted, the soup cans are an easier case for fair use because he was using them in a profoundly different sort of way than was being used by Campbell. Campbell’s wants to sell you soup. It’s a sort of a trademark like use, although they are copyrightable. Warhol had no interest in that. He was specifically commenting on commercialism in the era. But you do see this sort of desire to have a standard for the use of the original because [inaudible 17:13] line, criticism, or comment, and the lawyers for Warhol tried to argue there’s no necessity that you comment on the original. That’s an interesting -- it’s been argued before, but if it goes to a parody satire dissension, that comes out of Campbell to a degree, although courts have sort of blown past it.
So fine, but a parody is a fair use because it necessarily uses the original because it comments on it, as satire, which merely appropriates the original but does not comment on it, is not a fair use, is not necessary to take the original, let alone the whole. Many courts have gone beyond that to say that more general satire is also a fair use. Warhol’s counsel argued that; Goldsmith’s counsel, obviously, did not. And you did have a government which argued for itself and which fell down because [inaudible 18:07] parties did suggest a standard that the use be original was necessary or either useful or highly useful. So that’s the term we got for [inaudible 18:17] highly. But generally speaking, that for -- some, real utility to the use of the original, which made it important to use the original and not merely a choice [inaudible 18:31]. If you look at something like Weird Al’s songs, some of them comment on the original song; some just appropriate the song to make some sort of left-hand joke.
And there was some concern. American Society of Media Photographers filed a brief that said, “If you go with Warhol’s interpretation, it’s going to be essentially impossible for commercial photographers to make a living and a lot of concern about that.
There are some broader questions here. The Supreme Court, in 1883, held that photographs are copyrightable, but not everyone’s fully made their peace with that. And you did see some people trying to argue about photos. I don’t think the Supreme Court will touch that. But I got questions about whether photos are in any way different. Could they attempt to depict -- they depict reality in a more concrete way or not? I don’t know if that will play into it or not.
Also had a fascinating conversation -- so I mentioned the argument went nearly two hours, and Chief Justice Roberts was actually calling on the justices. So Justice Thomas, as is usually not his [inaudible 19:41], spoke. He mentioned he was a fan of Prince in the ‘80s—leading Justice Kagan to note—and not anymore, which got some laughs from the audience. And he had this example, what if you took the Goldsmith’s -- took the Warhol, rather, and you painted it -- the purple Warhol and painted it orange and set it up at a Syracuse game—you know, Syracuse Orangemen, of course—and whether or not that would be a fair use.
And truth be told, this is really anyone’s guess what’s going to happen, but it’s going to be enormously consequential. Fair use is the main, and increasingly -- and, really, by far the most important exception to copyright law, and it’s all over the [inaudible 20:29] saying they’re fair users or not. And I do think you’re going -- whatever happens is going to be very important. Now I’m looking forward to your questions. Thank you.
Jack Derwin: Thanks so much, Zvi. So we’ll now turn to audience Q&A, as you alluded to. I’ll remind our audience you could submit questions using the Q&A button at the bottom right of your window. I guess I’ll kick us off with one of my own here. You mentioned you don’t -- you’re stopping short of a firm prediction of how the court might rule, but do you see the Court taking this opportunity to make it a lasting ruling regarding fair use and maybe waiting a while again before taking a similar case? Or do you think it might be a more marginal change here?
Zvi Rosen: You know, it sort of depends, I think, just how much the Court wants to get into this. I will note, as I mentioned, there was a lot of discussion that other factors were not fully briefed, and so I don’t know if that’s going to be a factor in whether or not they are going to be issuing a more big decision or a more limited decision. It was a little surprising, frankly, to have two IP decision -- two fair use cases in two years. Google v. Oracle was just last year, although it was technically granted the year before. I tend to think, though, that this is going to be the last big decision for a while on fair use, just like the last one was. And I think the Court’s going to clarify what it meant by transformative use in the 90s, and hopefully, that’ll be something courts can use going forward.
Jack Derwin: Okay. Once again, our audience, you could submit questions using the Q&A button at the bottom right. And while we wait for questions to come in, I guess I’ll use my moderator’s prerogative to ask one more. Do you see this case breaking along typical ideological lines at all, or do you think, given the more esoteric nuance nature of the issues, it might be a little unpredictable?
Zvi Rosen: I think they’ll be unpredictable. I think that the Court just lost its two major combatants in copyright cases. Some of you might know that Justice Breyer, in 1970, wrote his Harvard tenure piece on copyright, and -- “The Uneasy Case for Copyright,” I believe. And Justice Ginsberg, on the other hand, was the most vocal defender of copyright law, and they often found themselves at odds. For instance, Golan v. Holder and in other cases—Eldred v. Ashcroft, as well. Those are both about the constitutionality of copyright term extensions and copyright restoration. I don’t think this is going to break on ideological grounds. I remember in Golan v. Holder, I was a little surprised to see the unusual pairing of Justice Breyer and Justice Alito in dissent, but I don’t necessarily see that changing. There’s just a lot of open questions, to be honest.
There were two new justices on -- who I’d never seen live—of course, Justice Barrett and Justice Jackson. I don’t know. Yeah. But I’d be very surprised at an ideological break. I do think [inaudible 23:54], though, there is a more, you might call, flexible Breyer-type interpretation that looks at ideas of fair use and having lots of new artwork created in public discourse, versus a more textualist view that’s going to say, “Well, it says transformative for derivative works.” But I think we’re -- we’ll see what happens.
Jack Derwin: All right. So we have a few questions now. One person is wondering, “What about the fair use case from 1968 involving the Zapruder film?
Zvi Rosen: Oh, man. I’ll admit, I haven’t read that before -- actually, I think Brian Frye has written a cool piece about that. That’s a really -- okay, so I haven’t read that case. It is protected by copyright law. I tend to -- I mean, the Zapruder film is such a sui generis piece of Americana, right? It depicts something totally unique in American history, and I tend to think that this -- I think that this is probably not going to severely disturb that. That also predates the enactment of the ‘76 act, with its fair use factors. So I think it's a fascinating case, but I don’t think [inaudible 25:18] this case doesn’t give that much to it, per se. And the [inaudible 25:20] definitely is worth reading again -- reading Brian Frye’s article about it.
Jack Derwin: All right. We have a question here. Justice Jackson stated a view that the Warhol side was applying the term “purpose” too broadly. Isn’t she right? If judges inquire into artistic purpose, doesn’t that invite judges to break Justice Holmes’s admonition that judges should not be the arbiter of artistic merit?
Zvi Rosen: Yeah. Well, so, that’s absolutely right. I’m trying to be even-handed here, and that’s, obviously -- if you say that you’re deciding how you’re going to rule. But yeah, of course, right. And de facto, even on top of all of these decisions where judges say, “Oh, this is transformative, therefore it’s fair use --” what does transformative mean? Frankly, you get into a line that says, “I know it when I see it.” That’s all it really is. “Oh, this comments.” “Well, this a new meaning or message, that isn’t.” “How do you know?” “Well, I just know.” And it’s absolutely right. You’re making the judge -- you’re almost asking, “Judge, do you like this or not.” It’s completely gray. I think it’s a terrible standard.
I think the Court in Campbell -- well, the Court in Campbell was -- well, Campbell, I think had been widely overread. I think Campbell, if you read it, it tries to do a detailed balancing to cover parody, which is not covered by the four factors. But everyone agrees that parody is fair use and then -- the Campbell decision was then read to just be about meaning or message. But Justice Souter does a much more -- much more careful balancing in that case. And I do think we’re going to see the end of just meaning or message on the [inaudible 27:00]. We’re going to see the Supreme Court saying, “No, we have the whole –” it’s sort of like I tell law students, “Read the whole opinion, not just the one-line summary.”
Jack Derwin: All right, we have a question here about how -- whatever rule does come out of this case, do you see any issues in how it might be applied to different art forms or -- yeah, do you see any issues with jurists applying across different types of media?
Zvi Rosen: That’s a really interesting question: different rules for parodic transformation. Parody is so tricky because we all agree parody proper is fair use. Well, not everyone does but it -- if you look at [inaudible 27:40]—and I talk about this in my amicus brief—it’s long been discussed that parody is fair use. But the why has always been unclear and how we find out what parody is. If you look at the [inaudible 27:54] says, it says parody or burlesque—it’s sort of an old-timey use of “burlesque.” The different media -- I mean, I think for all of them, it’s still a know-it-when-I-see-it.
And, of course, in Campbell, the Court says, “You know, there’s a difference between -- we don’t look at good parody versus bad parody, but we have to evaluate if it’s parody or not. And that, inevitably, involves some sort of judgment which is a little bit of the judge making a decision that’s not really based on, necessarily, all that much. And I do think judges sometimes struggle to see parody. And on the flipside, you’ll see people argue that everything is parody. In every fair use case, ever, they’ve been argued -- they’ve argued, criticized, or commented somehow.
So the short answer is, I don’t think the Court’s going to set any standards for that, in this case. I’d be shocked if they did. In terms of -- I do think judges almost certainly have a harder time seeing parody in art versus parody in music, and parody in music is much easier to see. But I don’t think the Court’s going to get too deep into that.
Jack Derwin: One more question here. What impact could this ruling have on derivative works that are owner-displayed in museums?
Zvi Rosen: Yeah. So that’s a question that has really been important, and I will say Goldsmith, in particular, has been very careful to say, “We aren’t talking about that.” And Warhol is saying, “Oh, yes, you are, and look at your complaint.” And whether or not -- I don’t want to say who’s right or wrong there, but you have a specific concurrence of the Second Circuit, which I believe Judge Jacobs saying, “Just so you know, we’re just talking about the license to Condé Nast. We are not talking about use in museums.” The government also weighed in with their brief to say, “We believe that the use by Condé Nast is not a fair use, but we are not -- but we think that the use by museums and creation of the Prince Series, generally, may well be different.”
Now, if a derivative work is lawfully made under copyright law, then it’d be publicly distributed under Section 109 in the copyright law. And so, if a student creation of a Prince Series was a fair use, and frankly, you assuming the Court—and I think they probably will—works the standard that differentiates between the licensing and the creation of the physical artworks, is not going to be that great. If the Court gives a mish mash or a very broad opinion, they absolutely could be substantial because if these works are not lawfully made under copyright law, you are violating the exclusive right of public display by displaying them. So, yes, I do think the Court is going to try to clarify that.
Jack Derwin: All right. We have one more question in the queue for now. I’ll note one more time for our audience, you could submit using the Q&A button at the bottom right. So this last question is, “Any thoughts on why the Court rejected the Onion briefs?
Zvi Rosen: I don’t think that was in this case. And I actually hadn’t heard they rejected it. I read that brief. It’s hilarious—really fun. But they did something like, in their -- I think it was the amicus brief, right? And they stated, “In trust of a parties and various statements and interests of the parties,” were parody. Like the Onion is a world-leading news publication with 4.3 billion subscribers. If the Court bounced it, it probably bounced it because even though it was obviously a parody—and I doubt they would sanction them—I guess the Court decided that -- save your fun for theonion.com, and don’t put it in your briefs. That’s my guess. It’s a shame, honestly. Oh, if the [inaudible 31:55] rightly decided. I’m sorry. I’m sorry, Jack.
Jack Derwin: No. No. Go ahead. Go ahead, if you’d like to address it.
Zvi Rosen: No. But it does some interesting things—just my opinion. I think it’s really helpful to -- Thomas, I think, really gets it in his dissent, and you see it. Okay, here’s [inaudible 32:21]. He says -- I actually just taught this case a few days ago so I’ve had a chance to read it again. Oracle does a couple of interesting things. They say nature, and they establish this new principle that for works that are on the periphery of copyright protection, like highly functional software, which might have only thin protection, if you will, that is going to work -- going to go against a finding of fair use. So highly functional software is less likely to be found to be a fair use. I think that’s probably the best part of the opinion. I think it’s arguable -- it’s fairly arguable. Whereas [inaudible 33:00], you have the purpose and character of the use, and Justice Breyer tries to argue it’s transformative because it empowers the creation of creative works. But that’s not really what Section 1 says, is it? Part 1 says, “The purpose and character of the use—” not of the subsequent use but of the actual use.
But either way, he invents this new version of transformative that it empowers future transformations. All right, whatever. It was in a market effects test in Google v. Oracle, but I think even Justice Breyer knew he was reaching. And he was just throwing in stuff, and Justice Thomas just nails him to the wall on the market effects test, I think. So I think Justice Thomas had it, obviously, right on that.
I think you could argue nature, but I think all the rest was -- went against the finding of fair use. Of course, the backstory of that, as I understand it—I mean, part of why it was [inaudible 34:01] for so long—is that Justice Breyer wanted to write a copyrightability opinion about software but didn’t have the votes. So he sort of turned to fair use analysis that has parts of his -- and by the way, I don’t know if this is even copyrightable but doesn’t rule on both grounds because I just don’t think he had the votes.
So no, I don’t think it was rightly decided. I think the real question for Google v. Oracle going forward, though, is not whether it was rightly decided because, much as I would like to have a power to change things, I can’t. What we can say, though, is that I saw almost no discussion before theSupreme Court, and I think it’s becoming a software case as opposed to a general fair use case.
Jack Derwin: All right. Well, to close us out, I’m curious -- I assume this was your first chance to catch an argument in person since the Courts has been back open. What was that experience like, and how -- what’s the new format like in person?
Zvi Rosen: I hate to disappoint. I actually -- I showed up at the Court, and they only let 19 people in from the lawyer line. And I was later told because I filed an amicus, I should have requested a seat. But I will tell you, it seemed very -- even though it was in person, that they did it, as far as I could tell, like the Zoom arguments, like COVID arguments, where everyone went way over their time. The Chief Justice was calling on everyone. And this was allotted on motion an additional 10 minutes, for 70 minutes. It went almost two hours. And it went two hours because Chief Justice Roberts kept calling on justices to ask more questions after time had expired, which I think unnerved counsel a little bit, too. I heard counsel say, “That concludes my time.” And then Justice Roberts called -- Chief Justice Roberts called on another justice to talk, which I think -- it’s really strange to me. But I guess this is the future, maybe.
Jack Derwin: Yeah. It’ll be interesting to see how the arguments play out over the rest of the term. And thanks again, Zvi. This has been fantastic. And thank you to our audience for tuning in to today’s event. You can check out our website fedsoc.org or follow us on any of the major social media platforms @fedsoc to stay up to date. With that, we are adjourned. Thanks, Zvi.
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