Lou Perry Comments on the Future of Copyright Protections With Indiana Lawyer

In “Fair to Use? U.S. Supreme Court Considers Copyright Claims Over Andy Warhol, Prince Prints,” Indiana Lawyer turned to intellectual property partner Louis Perry for his commentary on the legal battle involving the fair use doctrine and how the future of copyright protections will be interpreted and enforced by courts.

“I think there’s going to be probably a chilling effect one way or the other, regardless of what the court does,” explained Perry. “But currently, there doesn’t seem to be a principled, consistent test that provides artists with useful guidance as to what might be fair use. What my hope here is that we’re going to get a correction of the path we’re on.”

Perry added, “I do have a hesitancy to expand the fair use doctrine in a manner that would stifle creativity. What I mean is when an artist creates a work, copyright affords that artist the right to creative derivative forms. ‘Transformative becomes such an expansive concept that effectively removed the right of an artist to create a derivative work.”

“I think that has a chilling effect on the artist in the first instance,” said Perry. “I would hope that the court would set forth a fairly straightforward position on what transformative use is.”

He noted that the concept of transformative use has been muddied by different court interpretations over the years. “You don’t want a court to try to figure out the subjective intent of an artist in deciding whether or not something is transformative, because that seems to be an impossible task and can lead to inconsistent results.”

The full article is available for Indiana Lawyer subscribers.