The Stakes in Andy Warhol Foundation v. Goldsmith

The Stakes in Andy Warhol Foundation v. Goldsmith

Next week, the Supreme Court will hear oral argument in Andy Warhol Foundation v. Goldsmith, the first non-software fair use case the court has heard since 1994. This has copyright lawyers aflutter, as fair use law has been in increasing disarray for the last 20 years or so, and there is hope that finally the Supreme Court will give lower courts much-needed guidance. Unfortunately, I think the probability is higher of a mush-filled disaster of an opinion, like the one in Star Athletica v. Varsity Brands (2017), that not only gives no guidance, but eliminates the few stable boundaries we have.

That’s because fair use doctrine is a poor fit for the way modern courts operate, and there is probably little the Court can do to fix that, but a lot it can do to make the problem worse. But before I get there, I want to lay out in this post what’s at stake in AWF.

The case involves a licensing deal between celebrity photographer Lynn Goldsmith and Vanity Fair magazine.

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Law Student and PILS Fellow Morgan Kaplan Describes the “Steps” Required of a Pro Se “Movant” in Family Court in Milwaukee County

Milwaukee County CourthouseEarly this semester, I had the privilege of meeting with Marquette law students who this past summer held Public Interest Law Society fellowships. These 25 individuals worked at organizations, geographically from Wisconsin to Chicago to Washington, D.C., with a variety of focuses—including public defender offices, legal services organizations, prosecutor’s offices, government agencies, and civil rights entities, scarcely to exhaust the list.

I learned so much from the conversation, arranged by Angela F. Schultz, assistant dean for public service at the Law School. Much of it would be worth relating, and I encourage everyone in our law school community to converse with one or more of our impressive PILS fellows.

In this post, with thanks to (and permission from) Morgan Kaplan, a second-year student, I want to highlight briefly one phenomenon that she observed this summer as a PILS fellow working at the Milwaukee Justice Center. More specifically, she described for the group some of the difficulties faced by pro se litigants hoping to modify family court orders in the Milwaukee County Circuit Court.

Here is the description, which I asked her to write up:

One might hope that filing a motion to modify a family court order would be a relatively straightforward proposition—perhaps even that a party could bring in the completed paperwork, drop it off (file it) in one place, and move on to preparing for the court date or other tasks.

This is not the case. Rather than a simplified process that promotes access to the civil justice system, pro se litigants must navigate a sea of forms and offices, even after they have filled out the modification form (the motion). The Milwaukee Justice Center has prepared a sort of map—a checklist—to guide their journey. Let’s travel with them.

1. Those who are eligible for a fee waiver, either based on income or receipt of public benefits, will start in Room 104, the Clerk of Court’s office, to have their fee waiver notarized.

2. That’s just notarization: Having the fee waiver approved requires a trip up to the Chief Judge’s office in Room 609. Once those interested have an approved fee waiver, then they can move on to the next steps to file the motion.

3. It’s time for filing. This happens in Room 104, the Clerk of Court’s office (a second time for those using a fee waiver). There, interested parties will either show their fee waiver or pay a filing fee, giving the original documents to the clerk. We may now call them “movants.”

4. Then they will move upstairs (a second time for those with a fee waiver)—all the way to Room 707—to visit the office of the Family Court Commissioner. There, movants will hand all remaining copies of the motion to the calendar desk and get a hearing date, which will be stamped on all copies of the motion.

5. If the desired modification—the relief requested by the motion—involves a child support order, movants will head back down to Room 101, the Milwaukee County Child Support Office, to drop off a copy of the motion there as well.

6. After those three stops (five, in fact, for those with a fee waiver), movants will head over to the Safety Building, Room 102 (connected to the courthouse via skywalk), to fill out paperwork in hopes of having the Milwaukee County Sheriff serve the other party (if a county resident) with a final copy of the motion.

We all know that the processes of our civil justice system were not created with unrepresented litigants in mind, yet no one doubts that cases with such pro se litigants, in fact, predominate in family courts across the country. We may well ask whether we have taken enough steps to facilitate access to justice for these pro se litigants.

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State Supreme Courts and the “Major Questions” Doctrine

When a legislative body delegates authority to an administrative agency, it cannot envision every future scenario, and often uses language that is regrettably—but necessarily—imprecise. Take, for example, the power given the Wisconsin Department of Natural Resources to exercise “general supervision and control over the waters of the state.”[1] Or consider the United States Environmental Protection Agency’s authority to select the “best system of emission reduction” for certain entities emitting air pollution. (The United States Supreme Court analyzed the scope of the latter provision earlier this summer in West Virginia v. EPA). Operationalizing such vaguely worded authority has proven difficult for agencies. Disputes about the true extent of the delegation arise when the agency takes action near the limit of the delegation.

In the legal skirmishes that result, courts sometimes find the agency has gone too far. The most recent, high-profile example of this is the West Virginia case, in which the Court endorsed the “major questions” doctrine. The Court examined EPA’s authority to enact a plan to cut emissions of carbon dioxide from power plants. To some extent, the plan required a “generation shifting” approach mandating a transition from fossil fuels to renewable energy sources such as solar and wind. The Court took a skeptical view of the plan. It held that in certain “extraordinary cases” raising a “major question” of “economic and political significance,” there is good reason to restrain the scope of an administrative agency’s power, especially if Congress had not clearly delegated authority for the agency to take the questioned action. The Court further explained that the doctrine flows from traditional separation of powers principles inherent in the federal constitution. The holding seems likely to restrict the reach of just about any federal agency’s authority.

In light of West Virginia, will state courts adopt state-level equivalents of the “major questions” doctrine, based on the parallel separation of powers principles in state constitutions? In Wisconsin, the answer is not as clear as you might think, particularly in light of two recent Wisconsin Supreme Court opinions rejecting constraints on agency power, even when based on murky conferrals of legislative authority.

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