The principal goal of this Article is to explain that the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith preserved the flexible and well-balanced standards for assessing fair use defenses that the Court first established in its 1994 decision in Campbell v. Acuff-Rose Music, Inc. Campbell, which recognized that when putative fair users copy parts or all of earlier works for different purposes than the earlier works’ authors, such transformative purposes tend to favor fair use defenses because such uses are less likely to harm markets for the originals. Campbell eschewed bright-line rules and directed courts to assess all fair use factors and balance them together in a flexible and holistic manner. Contrary to what some have mistakenly asserted, nothing in Warhol abjures the rich body of fair use case law, both before and after Campbell, that has recognized many types of fair use justifications. The Article begins by tracing the evolution of copyright’s fair use doctrine and its broad scope, reflected in Congress’s intent in codifying the doctrine in the 1976 Copyright Act and in cases such as Campbell and Warhol. This Article then reviews a wide variety of cases in which courts have found fair uses to be justified, not only based on specific parts of the text of 17 U.S.C § 107 but also falling under three other well-established categories of fair use justifications. Such robustness in the case law gives this doctrine the openness to other fair use justifications that Congress intended, in keeping with the constitutional purposes of copyright law.
