Professor Carroll's new paper, The Triumph of Three Big Ideas in Fair Use Jurisprudence
The article published by Tulane Law Review argues that in two recent cases, Google LLC v. Oracle America, Inc. (“Google v. Oracle”) and Andy Warhol Foundation for the Visual Arts v. Goldsmith (“Warhol”), the Supreme Court ratified its 1994 holding that transformative use is the appropriate analytical framework for applying copyright law’s fair use provision. The Court’s decisions, which represent one-third of the Court’s total merits decisions on fair use, are historic. The principal contribution this Article makes is to demonstrate to courts and parties in future fair use disputes how the holdings in these cases readily synthesize to provide useful guidance that will be relevant, for example, in disputes about generative artificial intelligence.
This Article disagrees with those who argue that Warhol represents a retreat from transformativeness, demonstrating instead that the Court in Warhol simply rejected a caricatured version of this form of analysis.