Copyright Fair Use – Context Is Everything

In the span of two weeks, decisions from the Supreme Court and the Court of Appeals for the Second Circuit manifest the complex nature of the copyright doctrine of fair use and how its contextual application can lead to opposite results. In Google v. Oracle, the Supreme Court held that Google's copying, verbatim, of Oracle's Java Application Programming Interfacing ("API") was fair use because Google took "only what was needed to allow [programmers] to put their accrued talents to work in a new and transformative program."¹ In contrast, just several days beforehand, the Second Circuit determined that a series of Andy Warhol illustrations of the musician Prince were not a fair use of a photograph on which the series was based.² The Second Circuit's opinion followed a trend of certain circuit courts in highlighting economic factors in the analysis of the fair use defense.³ The Supreme Court balanced all the elements and notwithstanding the economics found fair use in