Navigating Fair Use: A Journey Through Recent Case Law

Red rectangle with The Ohio State University logo at the bottom of the rectangle. Above it reads, Fair Use Week, February 26-March 1
Fair Use Week, February 26-March 1

In celebration of Fair Use Week 2024, we are looking at some recent copyright lawsuits involving fair use and their potential impact on libraries and the wider community.  

What is Fair Use? 

Fair use is found in Section 107 of the U.S. Copyright Act. It is a limitation on the exclusive rights of a copyright owner. If the use of a work is a fair use, no permission is required from the copyright owner to use the work—the law states that a fair use of a copyrighted work is not an infringement of copyright.

The law provides some illustrative examples of potential fair uses, including use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship or research. Ultimately, however, a court of law makes the final decision about fair use. To make a fair use determination, courts consider and weigh four factors in light of copyright’s purpose of promoting science and the arts. These four factors include: 

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 
  • 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 value of the copyrighted work.

Recent Fair Use Decisions: 

Two recent cases in which courts have considered a fair use argument are Hachette v. Internet Archive, a case on appeal in the Second Circuit, and Andy Warhol Foundation v. Goldsmith, a case decided by the U.S. Supreme Court. 

Hachette v. Internet Archive 

In June 2020, Hachette and several other publishers sued the Internet Archive for its use of Controlled Digital Lending (CDL) in its National Emergency Library during the COVID-19 pandemic.

CDL is a model used by libraries to digitize physical materials that are lawfully acquired by the library and loan them out in a digital format. It operates on a one-to-one (“owned to loaned”) ratio, where only one digital copy can be loaned out for each physical copy owned to ensure no more copies circulate than originally purchased.

The case centered around the consideration of whether CDL constitutes the fair use of copyrighted material, considering its educational and non-commercial nature, if online libraries should have the same lending rights as physical libraries, and whether publishers have absolute control over digital access to their works, even if libraries own physical copies.

In March 2023, the court granted Hachette’s motion for summary judgement, finding Internet Archive’s lending of commercially available books through CDL was not a fair use. The Internet Archive began the appeal for that decision in September 2023. 

What are the possible implications for libraries? The case raises crucial questions about copyright law and the balance between access and publisher rights. The ruling in favor of Hachette narrows the interpretation of fair use for digital libraries, potentially affecting libraries' ability to offer digital lending services.  

Andy Warhol Foundation v. Goldsmith 

Last year, the U.S. Supreme Court issued an opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case involving a series of works by Andy Warhol (collectively called the “Prince Series) that were based on a photograph taken by Lynn Goldsmith in 1981.

Goldsmith had granted a “one time” only license to Vanity Fair for use of the photograph as an artist reference for an illustration. That illustration, a purple silkscreen portrait of Prince, was included in a 1984 issue of Vanity Fair, with Goldsmith credited for the source photograph. Goldsmith was unaware that other illustrations had been created as part of the Prince Series.

Following Prince’s death in 2016, a different illustration (“Orange Prince”) from the Prince Series was included on a cover issue of a magazine published by Condé Nast (parent company of Vanity Fair), under license from the Andy Warhol Foundation (AWF). Goldsmith did not receive a fee or source credit for the illustration in this tribute issue.  

In considering AWF’s fair use argument, the court focused only on the first factor: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. The court acknowledged that Orange Prince did add new expression to Goldsmith’s photograph but stated that “Many secondary works add something new. That alone does not render such uses fair. Rather, the first factor (which is just one factor in a larger analysis) asks "whether and to what extent" the use at issue has a purpose or character different from the original.”1

The court held that AWF’s use of Orange Prince on the magazine cover shared substantially the same purpose of Goldsmith’s original photograph, which was to depict Prince in magazine stories about Prince, and therefore the first fair use factor did not weigh in AWF’s favor. 

What are the possible implications for artists and creators? The implications of the case may take time to figure out. The opinion focused on a narrow issue: whether the commercial licensing of the photo may be deemed a fair use under the first factor of a fair use analysis (purpose and character of use).

To what extent does this analysis impact the creation of derivative works or appropriation art or other uses beyond commercial licensing? The court mentions that a different use, such as use of the illustration for teaching purposes, would “clearly affect the analysis” and that the facts before the court were not focused on Warhol’s original creation.2 The concurrence also mentions that a slight change in fact pattern, such as inclusion of the image in a book of art commentary, may well point to a fair use.3

One concern that has been raised, however, is artists feeling that they are now working in a murkier or riskier landscape. Moving forward, creators and users of copyrighted works are reminded to focus their attention on whether the secondary use serves a distinct purpose from the original. And while changes to a work may impact a work’s aesthetic or give the work a new message, those changes will not automatically rise to the level of transformative under the first fair use factor.  

New developments in fair use: Artificial Intelligence 

One area of increased conversation in copyright law is the topic of generative artificial intelligence. Generative artificial intelligence (AI) tools create outputs (text, images, etc.) based on the models that they were trained on.

The growth and use of these tools raises a number of copyright questions. Who can claim copyright ownership for work generated, in whole or in part, by a generative AI tool? Are AI companies liable for copyright infringement for the use of training data for the models, or is the use a fair use? Are AI companies liable for copyright infringement for outputs generated by the models, or could the outputs be considered a fair use? One recent lawsuit addressing the issues of copyright infringement and fair use in generative AI is The New York Times v. OpenAI

The New York Times v. OpenAI 

The New York Times sued OpenAI and Microsoft for copyright infringement in December 2023. The NYT claims that OpenAI’s language models were trained on millions of NYT articles without permission from the news organization. It also claims that the output of generative AI competes with the NYT’s journalism and harms their business. OpenAI has responded that the case is without merit; the training model relies on vast datasets that happen to include NYT articles and OpenAI’s use of these datasets falls under fair use, in a similar way to how search engines index websites. OpenAI also says that they reached out to the NYT for a licensing agreement but never received a response. The NYT maintains that the actions of OpenAI do not fall under fair use because they copy the NYTs work for commercial gain. The lawsuit is ongoing, and NYT has demanded a jury trial.  

The NYT v. OpenAI lawsuit is one of several copyright infringements lawsuits currently filed against AI companies. The lawsuit is significant because it raises questions about copyright and responsible AI development. It could impact how AI models are trained and used, therefore setting precedent for future cases. It will remain to be seen whether these tools will continue to develop under a theory of fair use or if mutual agreements based on opt-in or licensing will be adopted.  

Speaking on the case, Student Learning Librarian Michael Flierl says, “It is no longer difficult to imagine a world where most of the internet, movies, TV shows, books, newspapers, etc. are all predominantly AI-generated (with or without human input). AI could be used in harmony with artists, journalists, and scholars—spurring greater and more interesting artistic and scholarly endeavors. Of course, there are less desirable outcomes as well. The future is not pre-determined. We all have a say in the future of AI.”  

You can learn more about fair use by visiting the Copyright Services fair use page. Additional fair use information and resources are available on the Fair Use Week website at