May 262023

In his concurrence, Justice Gorsuch called the Supreme Court’s decision last week in the Andy Warhol Foundation v. Goldsmith case a narrow one of statutory interpretation, ostensibly doing nothing more than interpreting the breadth of the first fair use factor (“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”) the copyright statute lists for determining whether the use of an existing copyrighted work is fair.
But the majority’s decision, written by Justice Sotomayor, was hardly narrow; it was a decision that fundamentally rewrote the operational axis of our current copyright law. As a result, it does enormous damage to expressive freedom while also creating…

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