Private Law Theory

ABSTRACT
We need to rethink how we talk about derivative works after Andy Warhol Foundation v Goldsmith. Courts and scholars commonly use the term ‘infringing work’ to refer to art like Warhol’s Orange Prince after a ruling that it has infringed someone’s copyright. But the Supreme Court held that whether Orange Prince infringes the copyright in Lynn Goldsmith’s photo of Prince ultimately depends on how it is used. Orange Prince on the cover of a magazine about Prince infringes Goldsmith’s copyright. Orange Prince on a museum wall may not. Use, then, is the key. Because any work can conceivably be used in a non-infringing way, I argue here that there is no such thing as an infringing work. Conversely, and more controversially, there might also be no such thing as a per se non-infringing derivative. Again, use is key. A work incorporating a prior copyrighted work will necessarily infringe unless it is used in a non-infringing way, such as within the scope of a license or as a fair use. By clarifying how infringement – at least post-Warhol – is about uses not works, this piece will help courts and scholars better understand and apply the law moving forward, particularly as to controversial derivatives like fanfiction and AI-generated images. To put it bluntly: over 3,000 judicial opinions have said ‘infringing work’. From here, it should be zero.

McFarlin, Timothy, Infringing Uses, Not Works (June 1, 2024).