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Warhol v. Goldsmith (Fair Use)

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Warhol v. Goldsmith (Fair Use)

This course will introduce attorneys to the foundations of copyright law and the principals of fair use. This course will provide an in-depth analysis of the Supreme Court’s much anticipated decision in Warhol v. Goldsmith and its redefinition of the fair use defense to copyright infringement.

Transcript

Hello, everyone. My name is Caleb Green and I'm going to be providing this CLE presentation on the Warhol v Goldsmith decision. This decision focuses largely on the affirmative defense to copyright infringement that we know as fair use. I'm going to go through the presentation today, starting with a roadmap as well as diving into a little bit of an overview of copyright law, fair use law, and also ultimately diving into the Warhol v Goldsmith decision, its facts as well as some of its impacts on copyright jurisprudence. So as I mentioned, my name is Caleb Green. A little bit about me. Just so you know who it is that's presenting this. I'm an intellectual property attorney. I work at Dickinson Wright, which is a large intellectual property international firm. I work in their Las Vegas office, and I primarily practice intellectual property law. Primarily, I do a mix of both intellectual property litigation and enforcement, as well as prosecution. Prosecution for those that may not know, is ISIS people, for example, getting trademarks and copyright registrations from the United States Patent and Trademark Office, as well as the United States Copyright Office. And then on the flip side, after I assist those clients with securing those registrations, I then help them with litigating and enforcing the rights that they have in those registrations. Intellectual property can be a very complex area of law, and sometimes it's hard to figure out what do particular clients own that are protectable and what they don't. And we'll dive a little bit into that today as we talk about copyright law and ultimately fair use. So as a roadmap for today's presentation, I'm really going to break this up into three different sections as far as the presentation goes. First, I'm going to start with a copyright overview, an overview of what is copyright law. So for those of you that may be seasoned copyright attorneys or have a fair amount of understanding of copyright law already, this will be a great refresher. And for those of you that may not necessarily have a strong background in copyright law or may just want to make sure that you're brushing up on the fundamentals, this will be a great primer as far as the fundamentals of copyright law, what it covers, what it doesn't cover its duration, etcetera. Then I'm going to dive a little bit into fair use and focus on the defense of fair use itself. And the second part of the presentation, this will cover what fair use is also what it isn't. There's a lot of misconceptions and myths about fair use, about what it you know, how much you can copy of someone else's work. Is that going to be fair use or not? We'll dive a little bit into that. And then once we've kind of gone over, copyright and fair Use will be all kind of on the same playing field as we start to talk about the Warhol Goldsmith decision. And that'll be the third part of the presentation. So let's first start with what is copyright law? You may have heard this term copyright. A lot of times people that may not necessarily understand, you know, the legal terms, sometimes these actually get misconstrued with other areas of intellectual property law, patents, trademarks, for example. But I'm going to kind of talk a little bit about an overview of what copyright law is and distinguish it from the other areas of intellectual property law. So first, what is copyright? So copyright is effectively a kind of a limited monopoly in a way, and it gives authors, human authors a very strong, limited monopoly. Right. And those come, as many of you. If you're in law school or went to law school, you may have learned in property law. Oftentimes, property is considered. Property law is considered to be a bundle of sticks, and copyright is no different. It's a bundle of sticks of particular rights that you have for particular works of human authorship. Some of those rights are the right to reproduce. Another is the right to distribute. Others are the right to perform publicly or to create derivative works for those particular works. And not all works are going to be protected. We'll talk about that later. But to the extent it is a protected work, the human author is the is assumed presumed to be the copyright owner of that particular work and has the exclusive right to reproduce, distribute, perform or create derivative works. And we'll dive a little bit into more, more into what those mean. But some of these are really just take them for face value. Reproduce just means that you can't make copies of a particular work. Distribute may mean that you may have a particular copy of it, the whatever that copyrighted work is, but you may be limited to as far as distributing it to the public, making sales. Et cetera. Without permission from the copyright owner. Other things such as derivative works, public performance. Again, if take for example, a song. For example. The whoever the copyright owner of a particular song is, right? You can't just go and perform that song. If you're not the copyright owner, you don't have permission. So that's in a nutshell kind of what copyright law? It's its scope, if you will. But there are three requirements for something to be protected by copyright general requirements. There are a couple of other caveats that we'll talk about later, but the three main ones are that the work must be fixed in a tangible medium. Second, it must be original. And third, it must have some minimal level of creativity. So let's break those down really quickly. What does it mean for something to be fixed in a tangible medium? It means that it has to be fixed. It can't just be a thought that's just swirling around in your head or an idea that would be more suitable for something like patent protection, for example, and would not necessarily be subject to copyright protection. So it has to be fixed in a tangible medium. Take, for example, if you take a photo with your smartphone, you take a selfie, right? The moment you click that camera button and you hear that click, you know, there's an image that's now been saved in the form of data on your phone that is tangible, tangible, medium. Another example is let's take an artist, right? And they take paint to canvas. The moment they put that paint on the canvas and they create a beautiful work that is in a tangible medium. We can actually physically see it and experience it. So that is for it to be fixed in a tangible medium must be original. This is doesn't necessarily mean that a work has to be. You know, when I say completely, completely original, that it can't be inspired by something already that is existing. But courts have really construed originality to mean it's not a copy of someone else's work. So sometimes we hear that word original and we have to think we have to come up with something completely new that that's very novel and no one's ever, ever heard of before. Not necessarily the case in this case. For something, something that is original just means that it cannot be a copy, direct copy of someone else's work. And then lastly, we have minimal level of creativity. Copyrighted works do not have to be you know, you don't have to be, you know, Van Gogh or, you know, particularly greatly skilled painter or photographer in order for something they enjoy. Copyright protection has to have a minimal level of creativity. And we'll talk a little bit more about this later. But it can't be things that are facts can't be things that we call scenes of fair that a lot of people have come to know. Certain things are associated with, you know, a certain level of expression. For example, if we see, you know, an individual on one knee with a ring presenting it to a young lady, we all generally know that that is someone proposing. That is what that's an example of something we called scenes of fair. And it doesn't necessarily have this minimal level of creativity and copyright won't necessarily attach to that particular expression. So ultimately, if you have all three of these, you likely have a work that may be subject to copyright protection. But this is kind of the initial checklist. If you have these, you likely have something that can be protected by copyright. And as the author, you may enjoy the right to the exclusive rights to reproduce, distribute, perform, create, derivative works, etcetera. So very key question when it comes to copyright is when is your work protected? And this is very important because, you know, intellectual property rights, with the exception of a few, largely do not just, you know, last indefinitely. There is typically a deadline. There is a time when you have to in some cases, you have to allow other people to be able to use the work that you've created. And so this is a very important question. And for copyright, it's kind of broken down in a number of ways depending on how many authors or who the author is. So for the most simple scenario, if there is a single author, it is the author's life plus 70 years. So as long as that author is living, that particular work will be subject to copyright protection. And then upon their passing, it will maintain its copyright protection for 70 years. After that period of time, it falls into what we call the public domain. And that means that when work falls into the public domain, that means that anyone is free to use it. And the copyright owner no longer enjoys the exclusive rights that copyright law affords in the United States. For joint authors, it is a little different. And, well, I should say it's a little similar, but the only caveat is like the single author, it is the author's life, but it only it tracks from the last surviving author. So let's say you and a colleague wrote a book together and you co-authored that book. You all would be considered joint authors. If your colleague passes away. Copyright protection would remain on that book throughout your life. And then 70 years after your passing. So very similar to the similar author, but it just tracks with the last surviving author. Then we have what we call works for hire, works for hire, are effectively works that are owned by an employer or a company, not necessarily a human author. But in this case it may be assigned. And I'll talk a little bit about how it works for hire come about. But in this case, if it is a work for hire, let's say you're an employee and you created a specific work for your employer and you sign an agreement and said this is a work for hire, that copyright now belongs to the company. So instead of it enjoying, obviously a company, right. May not necessarily it's not a living being, so it may not necessarily have a, you know, a life for per se. So the Copyright act of. Delineates that that particular copyrighted work that's owned by a company, it's considered a work for hire, will either enjoy 95 years of protection from the day it was public or publicly known or publicly shared or 120 years from its creation, whichever occurs first. So that is effectively what is the duration of copyright works that are owned by companies, businesses. That's your LLCs, your corporations, etcetera, that have acquired these through work for hire or assignments through their particular employees or independent contractors. So I'd like to use examples to give you a little bit more depth and understanding of what our copyrighted works. We went through a couple of examples previously regarding okay, here are like the general checklist just to determine, okay, is is what I have even protectable under copyright. So just to give you some examples, one of the easiest ones I've talked about already is a photo. Photos are generally going to be afforded copyright protection in the United States. I used that example before. You take a selfie, you know, with your smartphone the moment you hit click and it captures that on your device that automatically you have copyright protection immediately. As soon as you it's in a tangible medium, right? There's a minimal level of creativity there. And it's, you know, assuming it's not a direct copy of someone else's selfie or photo of you, then you're going to largely you're likely going to have copyright protection there. Other things such as graphical works, pictorial graphical works, sculptural works, those are also going to enjoy a level of of copyright protection. Again, assuming that it's not a copy and there's some minimal level of creativity. Musical works. Musical works are also one of probably the most popular and well known forms of copyrighted works are these musical works, and that can be broken up in a lot of different ways, whether it's you're talking about what's recorded, whether you're talking about, you know, the lyrics of a song, someone writes the lyrics down, someone else, you know, produces a score, provides a melody. Those all those different aspects of music may be subject to copyright protection. Other examples are like patterns that may patterns or designs that you may apply to clothing or even the furniture. Those particular designs may be subject to copyright protection as well. Literary works, which is kind of a broad term, but literary works can be everything from a book to even down to instruction manuals can enjoy a level of copyright protection. So if someone else goes so it's not just I wrote this wonderful novel, right? It could be everything from even a factual book such as a self-help book or a book that is, you know, a biography on someone's life can enjoy copyright protection. But even things such as instruction manuals, if you're a company and you want to try to protect against, you know, someone else's kind of copying your instruction manuals and making some minor changes, you may have copyright claim against them. And as I mentioned, again, books are a good example as well of what our protected works. But these are just a few examples of copyright works that are subject to copyright. And just as we talked about what works are protected by copyright, I think it also helps to give you an understanding of the limits of copyright. What does copyright protection? What does copyright not protect? So first is works in the public domain. And I just kind of talked about those. Those are works that have their copyright protection has expired. The author has died. And since their death, it has been 70 years or it is a work for hire and either 95 years from publication have expired or 120 years from the creation of that particular work has expired. So those situations, those are works that are in the public domain as a as a note and a kind of a plug to Duke University, their law school every year actually puts out a law review article and they list works that are falling into the public domain. And I believe in 2022, the initial iteration of Winnie the Pooh actually fell into the public domain. So that's not the Disney iteration, but the original iteration fell into the public domain. So, you know, the idea of talking Bear, who likes honey and the 100 acre wood largely is, you know, that's public domain for everyone to use. But Disney's iteration. Right. Came much later. And so that still enjoys copyright protection. But they have they always put out a good list of other works that have started to fall into the public domain. Mickey Mouse is one that is on the list and will be coming up soon and largely likely will be losing its copyright protection. So but those works public domain, once they fall into the public domain, they're free for anyone to be able to use. I mentioned before, ideas are not going to be subject to copyright protection. Things such as concepts and methods also like not going to be subject to copyright protection. Again, these are things that are largely not going to be in a in a tangible medium and works in order to enjoy copyright protection, must be captured in a tangible medium. However, again, ideas, concepts and methods may be protectable under something like patent protection that protects ideas, things that you may not have necessarily put in a tangible, medium or reduced to practice. Those may enjoy patent protection and you go through the patent process and if it's eligible for patent protection, you can get it there. But as far as copyright, what we're talking about today, you're not going to be able to get copyright protection on ideas, concepts or methods. And similarly, you're not going to be able to get copyright protection on short phrases, titles, short names or slogans. That is going to be more largely a beast of trademark law, trademark law affords you the right to be able to use short phrases in connection with particular goods and services, you know, in the marketplace, and it serves to distinguish those. So, you know, the term Nike, for example, isn't going to be copyright protection, but it may be subject to trademark protection. So and that tracks right? We don't want, you know, if copyright law expanded to short phrases. Remember, copyright law provides an exclusive right to reproduce, to make, to to use that particular work. If we afforded it to short phrases. Right. When people came up with new words or even existing words. Right. People would not be able to use those particular words, whether it's in writing, talking, etcetera. And it will cause a lot of issues getting over into free speech. But also just practically, how do you even enforce against someone using a short phrase and you just want to stop them from reproducing it? Copyright doesn't extend that far, but there is a limited, more limited protection under trademark law as it pertains to using those short phrases, names or slogans in connection with goods and services in the marketplace. You may have a claim under under trademark law, but not under copyright. And then lastly, I'll cover useful articles. So to extend an article is useful. Let's say for example, furniture, for example, a chair, right? A chair of itself. While may be tangible, while you may may, you may have created a different kind of chair that hasn't existed before. It's not a copy. And there's some level of creativity. It largely may be useful. It has a useful function, so it likely will not enjoy copyright protection. However, again, like I mentioned before, you know, if it's a unique design, you may be able to get trademark or what we call trade dress protection for it. You may also be able to get a design patent. The underlying, you know, sketches, however, for that particular chair may be protected by copyright, but the chair itself may not necessarily be protected by copyright law. So these are just examples of where copyright is not going to go, where it does not extend. There's a lot of myths out there about copyright being you be able to get copyright on a name or, you know, certain ideas. And some of that is just misconceptions and people misconstruing patents and trademarks for copyright. They're separate areas of law, and it's important to understand the limits of copyright law, especially as we start talking about the Warhol decision later. I mentioned earlier, I was going to talk a little bit more about works for hire. And so let's talk about those really briefly works made for hire effectively for work. If a work is considered a word made, work made for hire, it is going to be provided. Copyright rights will be provided to the employer or the company that you're working for. This typically comes into play when you're dealing with an employee creation or a work that is created by someone that works for you. And so effectively, there are two ways here. You can get a work made for hire if it's prepared by an employee within the scope of their employment. So if I hire someone specifically, I have a company and I hire them to create all my marketing materials, right? And they create those marketing materials. The marketing materials that that employee creates will belong to the company. It will not belong to the employee because that was a work that was created by the employee in the scope of their employment. I hired them to create marketing materials. They created those marketing materials and that falls within the scope of their employment. I as the employer, I get the copyright. The other way is if you specially order and commission for a specific purpose, particular work and there is something in writing that says this is a work for hire that is also going to get you there. And this kind of comes into play when you're dealing with if someone, an employee or is someone a a independent contractor, for example. And this comes up a lot more. I wanted to bring this up because this becomes more of a question now that we're dealing in this remote work area. Um, well, especially amid Covid, right. It was a lot easier pre covid pre pandemic to determine if someone was operating in the scope of their employment. Right. Typically, you had you worked an 8 to 5. You went to the office. You you when you're at the office, you use your employer's, um, you know, equipment, computers, etcetera, in order to prepare certain works. But in the remote era, remote working era, right, you may be working outside of those normal 8 to 5 hours. You may be working later in the evening after midnight just because it's more convenient and you have the opportunity. Likewise, you may be using your own laptop or computer at your own home instead of using your own internet, instead of using, you know, the Internet and computers of your employer. So it gets a little bit more murky, a lot more gray area on what is actually a work made for hire. Is it an independent contractor? Was this created within the employee scope of employment or was it outside of the scope of employment? Those are all questions that come up. Ultimately, the best practice is to always have it in writing, regardless if their employee have it in writing. That says what you're creating belongs to the employer. It is not belong to employee. It is considered a work made for hire. That is the best practice. Next, we're going to talk about copyright infringement. So ultimately, you have you determine that there is a work that is subject to copyright protection, whether a work you're using or a work that you've created. Now, one of the concerns is how do I avoid copyright infringement? How do I avoid a scenario where I'm in court like the like Andy Warhol Foundation versus Goldsmith, and have to duke out a, you know, a litigation to the Supreme Court in order to determine who's right, who's wrong. Well, first is understanding what is copyright infringement and the elements to show copyright infringement is one that there's ownership of a valid copyright. The work the issue has proper copyright protections. Right? It's not it falls. It meets those three general requirements. It's not an idea or a concept. It's not a use for article. It's a valid copyright protected work. That is issue number one. Once you determine that work actually has valid copyright, then the next step is to prove prove the plaintiff has to prove that the defendant copied constituent elements of that copyrighted work without the copyright owner's permission. And there's two ways you can show this. You can show this through direct evidence that is, you know, an email or an admission from the defendant that says, yes, I copied, you know, plaintiff's copyrighted work. Now, that's one way of doing it. Now, that's not really common in courts. Recognize this and Congress recognized this. So you can also prove this through circumstantial evidence, which is most likely 99% of the time. If you're trying to prove copyright infringement, it's through circumstantial evidence. And some this can be shown through, you know, similarity of the work and that the defendant had access to the work. That may be that's sufficient circumstantial evidence to prove that the defendant copied. And sometimes, even if you don't have to prove that the defendant had access, you can do that if the works are strikingly similar, which is a lot more higher standard than showing that they're similar, but strikingly similar. They have very similar elements, very difficult for a reasonable person to believe that defendant didn't actually copy this from plaintiff. And once you're able to prove that, then the last thing you do in order to be able to bring a copyright infringement lawsuit in federal court is you have to have a copyright registration. You have to go through the copyright office. Get a registration. And then you're able to actually file in federal court and pursue a copyright infringement claim. So that's the basic elements of a copyright infringement action. Best practices are you want to get permission and you want to or you want to secure a license or an assignment before using a work. There's a saying that it's better to ask forgiveness than to ask permission. When it comes to copyright law, it is the exact opposite. It is better to ask permission than to ask forgiveness, because oftentimes you'll find yourself in a position where you may be having to defend against a particular lawsuit. I also want to bring up a very important reason about why you want to avoid copyright infringement is. Copyright infringement is strict liability. Meaning? Your intent is not necessarily going to determine whether or not you're found liable. You're going to be found liable, whether or not those elements are met, whether there's a valid copyright and there's circumstantial or direct evidence that you copied the constituent constituent elements of that copyrighted work. Notice there's no, you know, intentional or, you know, the defendant willfully or intentionally or knowingly copied that language is not here because copyright does not really care about your feelings. I like to say jokingly, it doesn't care about your feelings. It's much like the speed limit, if you will. If you're going one mile over the speed limit and a police officer pulls you over, then maybe it's lawful for them to give you a ticket, even if it is one mile over. Um, so that is an example of strict liability. You're either breaking copyright law. You're either infringing or you're not. You're either breaking the speed limit or you're going at or below it. That is how copyright infringement works. Intent and willfulness can be can be helpful, but largely it's not going to be helpful to get you out of liability. It's really more on the side of, hey, what kind of damages do we want from the defendant if it was willful or intentional? Likely you're going to be able the plaintiff will likely is going to be able to get more damages from the defendant in that case. So it doesn't go willfulness intentional, you know, didn't know or, you know, didn't realize those aren't going to be sufficient defenses to copyright infringement. The other thing about copyright infringement is there's two ways you can get damages. One is through actual damages, you can actually prove up to the court and say, hey, you know, they copied this particular work and it cost me this much in damages, right? I lost out on these opportunities because of it directly. And if those were direct and proximate cause of those damages, then they can acquire those. The other one is statutory damages. Statutory damages are much different, right? Actual damages are like if I'm driving a car, right. And I rear end you and you break your arm, you go to the court and the court says, okay, Caleb's found liable, but what damages do you have? You have to go to court. You have to go, you know, go to the emergency room. You get a receipt for the $1,000 it costs you to get your arm fixed up. And you have to get that. You have to work to get that particular receipt into evidence. You have to present it to the court, present it to a jury and prove that there was an actual and proximate cause. My accident caused that that harm. And then they can award you a judgment. There's a lot of steps there that's actual damages, statutory damages, cut a lot of that out. And it says you you cannot if you don't want to pursue actual damages. Here is a breakdown of statutory damages. And under the Copyright Act, you can recover $750, up to $30,000 in statutory damages. And that's based upon the court's discretion. And so you can choose a plaintiff can choose do I want to pursue actual damages or do I want to pursue statutory damages? Statutory damages are just provided. At at right. So plaintiff goes in and proves that you're liable. And they had a copyright registration in place before the infringement took place. You're looking at at least $750 in immediate statutory damages. And the court can use its discretion to award anywhere between 700 and $50 to 30,000. If you're found to be willful, then that can that can extend up to $150,000. So those are reasons why copyright infringement. You want to be careful. And I like to use this example when I talk about copyright infringement. I mentioned I'm from Las Vegas, so this is actually one that sits home for me. What you see here on the screen are what appears to be two different images of the Statue of Liberty that is in New York. However, there are some there are differences here that I want to point out. The image on the left that you see is an image of a stamp from the US Postal Service. And the image on the right is actually a picture of the Statue of Liberty that sits in New York. You're like, Hey, why are you going over this? Well, the difference is the US Postal Service thought that they were using an image of the Statue of Liberty, which sits in New York City. But. But USPTO excuse me, The US Postal Service accidentally used an image of the sculpture of the Statue of Liberty that sets on the strip here in Las Vegas in front of the New York New York hotel. So, okay, Caleb, what's the difference there? The difference is the Statue of Liberty that sits in New York is actually a work of architecture. And there's an exception in the Copyright Act that allows you to take pictures of works of architecture. How many times have we taken a picture in front of a very historic building? A museum or something of that nature. If you know anything about the Statue of Liberty in New York, there's actually a museum inside. It's considered a work of architecture. So taking pictures of it isn't not going to trigger any kind of copyright infringement. However, taking pictures of a statue without permission and reproducing those images without permission from the copyright owner. That is starkly copyright infringement. And unfortunately, that is what the United States Postal Service did here. They reproduced an image of a statue without permission, and it cost them several million dollars in damages. And what's so key about this is that if I'd like to use this example, because if the federal government, if the Postal Service can mess this up, it's easy for other people to mess this up. And we'll see some of this kind of come to light a little bit as we talk about the Warhol Goldsmith decision. So now I want to talk a little bit about defenses to fair use or excuse me, defenses to copyright infringement. And this will lead into our conversation about fair use. So the first is what we call innocent infringement. So I mentioned before that there is defenses to copyright. Number one, let's just back up what a defense is. A defense is basically saying that, listen, I may be found liable. Yes, I used someone else's work without their permission. However, I have a good excuse for it. That is the important understanding of what a defense is. Sometimes this gets convoluted with, okay, I want to understand. I want to argue against whether or not there's actual copyright infringement liability, period. That's one argument. The other argument is, listen, we agree that or the court has already decided there's copyright liability. There's still a level where even if you may be found liable for copyright, you may have a defense that absolves you ultimately from paying any damages. And that's what defenses are. So innocent infringement is basically an argument that says, listen, we had no idea. I was unassuming, that I didn't know that this was a work. We see this a lot when images are being used. Let's say someone goes on Google and they download an image and they use it for their website and maybe there are mom and pop shop, you know, maybe there's someone that's just like doing an independent real estate business, you know, they're retired and they just don't really know. There's no notices, there's no watermarks on the image, and they just download it, you know, and they use it. That's innocent infringement. And that can again, you're still going to be you may still be found liable, but it can reduce the statutory damages from $750 down to $200. So now you're dealing with a much lower end, um, you know, level of infringement. And plaintiffs may not necessarily want to go after you because, you know, you may be an innocent infringer and they may not necessarily want may not be able to recover a lot of damages from you. So that is a one defense. Another is copyright misuse, which is very kind of a broad argument. But basically it says that, you know, plaintiff may have copyright, but they're misusing it. Or if you enforce copyright in this way, it would be contrary to public policy or contrary to how copyright law was actually supposed to be used. We see this, for example, there's arguments that copyright misuse comes into play when people are weaponizing copyright, for example. So there's there's a few examples we have law enforcement using when they're being recorded by lawfully recorded by members of the public that they may start playing music, they'll pull out their phone, they'll play Taylor Swift, or they'll play some country music so that the that recording is capturing that recorded music as well as, you know, whatever the officers are doing. And if someone goes and tries to post that on like, let's say Facebook or any form of social media on the Internet, it likely will get taken down because it's detected that there's copyright music being played that gets into like first First Amendment. Is this a first? Is this, you know, encroaching on First Amendment rights? Right. Those are arguments of copyright misuse. Is the copyright enforcement going outside of, you know, the intent of copyright law? So that's another defense, independent development, no registration, lack of originality. These are all these are kind of more formality arguments, right? This the for example, we independently develop this work. Um, you know, we didn't copy this. That may be a defense. No registration, right? Lack of registration. There's no registration by the plaintiff. So, you know, they can't lawfully bring this federal lawsuit against us. That is, again, a formality argument. Largely, most courts are requiring you to prove up that you have a registration before it moves on. But that's also a defense lack of originality. The work does not have originality. As I mentioned before, merger doctrine talks about ideas, right? If you're particular copyrighted work is really covering ideas, concepts, methods, scenes, affair, as we talked earlier, then it's likely not going to enjoy copyright protection. And that's an argument as a defense to copyright infringement. So these are a few. But then we get to the big one, right? The one that we're all that that started the whole Warhol v Goldsmith debacle. Um, fair use, fair use. What is fair use? It is defense to copyright infringement. It is specifically enumerated in the Copyright Act and I'm going to talk about fair use defense next. So fair use is a defense to copyright infringement that is specifically enumerated in the Copyright Act. 17 USC Section 107 specifically talks about fair use. But fair use isn't something that just came about in the Copyright Act. The fair use goes back to the 1830, and courts recognized that there was some level of fair use that needed to be represented when it comes to, you know, copyright infringement disputes. Right. There's a level where people need to be able to use people's works even if they are protected by copyright to a certain extent and with certain limitations. So the Congress saw it useful to we need to codify fair use into the Copyright Act, and they did. And it's effectively an affirmative defense. And it provides in part that use of a copyrighted work for certain purposes, such as criticism, aim, comment, news, reporting, teaching, scholarship or research is not an infringement. So that's the basis of fair use, is that Congress recognized that there are certain uses of copyrighted works that we don't want people to be. We want people to be able to use those works for certain purposes. If you're going to do criticism right or comment news reporting right, again, that goes into, you know, there's a there's a caveat with First Amendment right. We want people to be able to talk about someone has a new book out, you know, and they want someone wants to do a news report on it. Right. They shouldn't be subject to copyright infringement cases because they want to talk about it or, you know, show show a copy of it on the air. Likewise, teaching this comes I think this is one that we all can think about and consider. You know, someone puts together a presentation like like the I'm putting on now or, you know, you go to Quimby and, you know, you're trying to learn from various, you know, other case summaries. Et cetera. Right. Teaching largely is going to be a level of fair use there. Other things, such as scholarship or research, there's going to be levels of fair use where you may be able to use someone else's copyrighted work, reproduce it, distribute it without their permission because it falls under fair use protection. That's the basic idea behind, you know, what fair use is and why ultimately it's been recognized as an affirmative defense. But fair use is not a bright line test. You can't just say, Oh, I'm using this for educational purposes or I'm not using I'm not selling it, or I'll only use X amount percent of this. That's not going to be sufficient just to get you fair use. There's actually a list of factors. And notably, it's a mixed question of law and fact. A lot of courts have recognized fair use is a mixed question of law and fact. What does that mean? It means that there's legal questions that need to be answered, but there's a lot of facts that need to be addressed, and it makes fair use very difficult for, let's say, a motion for summary judgment to win on, largely if you're trying to get a if you're a plaintiff and you're trying to get you know, hey, listen, there's no fair use here and you're trying to overcome that fair use defense on a motion for summary judgment, it's going to be difficult because courts are going to look at are there genuine issues of material fact? Well, fair use. You have to dig into the facts. And so a lot of cases, it may be difficult, but I bring that up because there's a misconception that fair use is just this easy only use 20%. I only use 30%. So I'm good. And that's not going to be the case. There's a list of factors here that that the court must address and that we see the court address in the Warhol v Goldsmith decision, and the four of these are, number one, the purpose and the character of the use. And so the Court's going to look at is what is the purpose and the character? And I'll talk a little bit about what the court before the Andy Warhol versus Goldsmith case, what they kind of looked at as far as purpose, character of the use. This is going to be the main factor that the court addressed. What they used to look at is what is it transformative? Does it provide a different message, character of use? Is it commercial in nature? Is it educational? Are you using this for scholarship or research? Is it a parody? Is it criticism? Is it comment? Is it from news reporting? That is effectively what that first that first factor is looking at. Again, mixed question. You have to dive into the facts on that a little bit. And depending on the case, you know, are you using it for commercial use? Is it educational? Is it providing a different message? Is it transfer? That's transformative, as the courts have put it. That's what you're looking at on factor number one. Factor number two is the nature of the. Copyrighted material or work. So is it, for example, is the work factual? Is it creative? Is it fictional? You know, are we talking about, you know, the Harry Potter books, which are very, you know, fictional, or are we talking about a, you know, an autobiography, a history book that's talking about actual, you know, facts that happened in history. That is what that particular factor would look towards. Then we look at the amount and substantiality of the use and related to the whole. So this is where the courts look at how much did you use, how much a percentage did you use? But also they look at, you know, the heart of the work. You know, for example, let's say you like to use this example with boxing, right? You may let's say you take a boxing clip and let's say the fight goes 12 rounds. Right? A lot of time maybe it was let's just say it's 30 minutes, just using that for an example. Those 12 rounds, you know, 30 minutes of of a video clip. But you only copy the knockout. Right. And the knockout may only be 15 seconds, right? 15 seconds to 30 minutes. That's a very low percentage. However, that's when the court looks at not just the amount, but the substantiality. The knockout may be the very substantial part of the fight that everyone wants to see. And therefore, you you know, in that situation, this factor may weigh against a likelihood of fair use and in favor of infringement because of the substantiality of the use that you use. So it's not just about amount. It's not just I used, I only use 10%, Caleb. I only use 30%. It's there's a lot more there. And so again, mixed question of law and fact court has to dig into, you know, how much does this go to the heart of the particular work or not, Not just the surface level. This was an X amount percent of the original work that we copied. Lastly, is the effect on the potential market. So courts often ask questions like, Is this a substitute for demanding work? Right? They also look at other facts like licensing, You know, you know, if this was if you copied an image. Right. But there was that particular copyright owner of that image licensed that particular image out and they received royalties or fees from that court. May look at that. If you copied it, what impact did that have on that particular work? That's licensing fees that they likely would not have received or recognition they may not have received or their substitutes for that for the demand for that work. That's another thing the courts will look at and see if there's a effect on the potential market for that work. So these are the factors that the courts are going to look at in determining whether or not there is fair use. It's not a bright line test and it can be very sticky and it requires a lot of factual inquiries and not just a surface level legal standard argument. So now let's I'm going to start diving into now that we have an understanding of copyright law, what is infringement, what is subject to copyright protection? What is fair use? Let's start to lead up to the conversation about the Warhol decision and the Goldsmith Warhol versus Goldsmith decision. First, we need to kind of start and go back and let's talk about some of the key cases on fair use and copyright law that have come down in the last several years. So the one case that we actually see this case get cited to in a lot of the briefings and the court has to also wrangle with in this decision in the Warhol v Goldsmith decision. One is the Campbell case. And this is a very iconic case. You may have heard of it before, but effectively plaintiff sued two live crew because they made a recording. Two live crew made a recording using the Pretty Woman song, and they made a hip hop song. Um, using the original Pretty Woman lyrics and cadence. They so plaintiff asserted that Campbell two live crew infringed on the copyright in their Pretty Woman song. And so this went through, you know, just take you through the procedural history. The district court granted summary judgment for two live crew saying that the that the song was a parody. Again, parody falls into under one of the, you know, criticism or comment that's one of the. Um, purposes of fair use is to allow that kind of work. They say that and so the district court said this is fair use, right? The way that they use this song. It is, you know, fair use. The Court of Appeals on appeal held that the commercial nature of the parody rendered it presumptively unfair. So so the Court of Appeals relied more on. Well, the song, although the song is may necessarily be a parody they're borrowing from the song. Right. They need to use the Pretty Woman song in order to, you know, make it funny or to to comment on the song or provide this, you know, funny or hip hop expression towards the Pretty Woman song. The Court of Appeals said that the commercial nature outweighed any kind of value that they would have out of the parody. And so the court, the court of appeals, reversed the district court's decision, saying, look, we don't find this to be fair use. So this made it up to the Supreme Court in 1994. And the question presented was, can two Live Crew's commercial parody of the old Pretty Woman song Be Fair Use within the Meaning of the Copyright Act? And the court, in a unanimous decision, said yes. They said this is actually fair use. And the court created this and I mentioned this before they created this term called transformative. And they effectively said that the meaning or the message that two live crew created was different. It transformed the work, the the old Pretty Woman song. They transformed it to having some new message. And that is that is the key question under the number the first fair use factor which is purpose and character of the work. And if a work is transformative meaning. There's a different meaning or message that's conveyed, even though you're copying that first, that largely that first factor will likely weigh in favor of fair use. And the court said first factor weighs in favor of fair use. We find it to be transformative and therefore it's fair use. And this was the standard court's from here relied upon. Is the work transformative? If it's transformative, then, you know, we're going to go ahead and side on the side of fair use. We're going to side on the side of the defendant in light of cases, not every case, but in most cases that courts see if they find the work to be transformative. It's largely it's likely going to be enough to be able to get it over to fair use defense and absolve a particular claim of copyright infringement. So that's very important for us to understand. It comes into play again in Google V Oracle in 2021. And if you remember this case, this was a dispute between Oracle and Google. Google copied, you know, several lines of code from Oracle. And the court again, in this case looked at it again and said, okay, is this, you know, was this infringement or was this fair use? And the court said in that situation, yes, it was fair use. And they again focused on and said, look, the court is excuse me, they said it was a transformative use in this case. And so, again, we see the court again falling on the side of, okay, transformative. If it's transformative, if it's providing a different conveying a different message or meaning, it's largely going to be considered fair use. The court also looked in this case at several other issues that we're not going to dive into, but they also looked at how much code was copied. They said only 0.4% of the entire API. Uh, you know, Oracle's code was copied only 1.0. 4%. So they said that weighs in in favor of fair use. Um. They also looked at other things as far as the nature of the work, commercial or not. You know, the the lines of code being bound together with the facts that are, you know, that they're inherent in source code, weighed in favor of of fair use as well. But we see the court relying again still on the transformative nature of the transform, whether or not the work is transformative, and that being determinative of whether or not a work is going to be considered copying of a work, it's going to be considered fair use. So all of that gets us to the Warhol Foundation for Visual Arts, Inc. versus Goldsmith decision, which is what we're here to talk about today and all. I promise all of that lead up was very important for us to talk about this and be able to understand this case, you know, on its on its base levels and at least the fundamentals of the case. So let's let's talk about how this case came to be in started early in the 19 in 19 80s, early this is early in Prince's career. The photographer Goldsmith took a photo of Prince. And that's the the image that you see on the screen. This is the image. And this is before, you know, Prince is, you know, the superstar that became the B, But this is the image that Goldsmith took and got copyright protection on this image and, you know, got it registered and everything. We fast forward to 1984 and then Prince, now Prince's stardom is on the rise. He's becoming a superstar globally. Everyone knows about Prince. People know his song. You know, Purple Rain. We know a lot of the the iconic Prince songs. Those are on the rise. And people are starting to recognize and learn about Prince. So in light of this, Vanity Fair wanted to do a story on Prince on his rise to stardom. So Vanity Fair did what a lot of copyright lawyers and what I talked about earlier in this presentation, what you do when you want to use someone else's work, you don't ask for forgiveness. You ask permission. So Vanity Fair did that. They went out, they asked permission. They got a license from Goldsmith to use this photo for their publication. So, so far, so good, right? No infringement. Vanity Fair's received a license for the copyright image before using the image in their publication on Prince. Goldsmith receives no compensation in the form of, you know, she gives out a license. She allows, you know, Vanity Fair to use this image in Vanity Fair pays her, you know, for to be able to use this particular work. So, so far, so good. No infringement? No, really, No. No claim for copyright infringement. However, unbeknownst to Goldsmith, while Vanity Fair, using the license for the image of Goldsmith of Prints that Goldsmith took gold, Vanity Fair commissioned Andy Warhol to create these modified images of prints, and particularly the one that made it into Vanity Fair was this image that we see here on the screen, and they called it Purple Fame. Now, again, the license that was granted to Vanity Fair from Goldsmith was only for was only for Vanity Fair. Vanity Fair did not have the right and Warhol didn't have any permission from Goldsmith to use this particular image and to create other works. But still, you know, we're still, you know, in the 1980s. Right. Goldsmith doesn't know anything about this, so no reason to know that there's going to be any form of copyright infringement whatsoever. So nothing happens, right? So but and beyond just creating that one image that was in the Vanity Fair publication. Goldsmith also didn't know Warhol created 15 other similar modified drawings and images of prints which used Goldsmith's underlying image. And we see some of those here. A lot of different colors. And if you know anything about Warhol, he's used to creating these kind of appropriated imagery works, adding different colors and styles and hues. So this is this is classic Andy Warhol. He created 15 of these. 15 additional ones. They called it the Prince collection. And these works were created towards the end of Warhol's life and which garnered a lot of lot of value. And so ultimately, a lot of these were sold off to collectors for large sums of money. But again. Right. Warhol Foundation does not. Warhol did not have permission to make these. But at this time, Goldsmith still does not know that these works were out there and that they're being sold. And so despite creating the image in 1984 and the 1984 Vanity Fair article. And these additional images in the Prince collection still didn't trigger a copyright infringement lawsuit. So we've gone from 1980s, now we're fast forwarding up to 2016 and that's where everything changed. And because in 2016, if you recall, Prince passed away and Vanity Fair wanted to put out a commemorative edition of its magazine in honor of Prince. So recall, back in 1984, they did the the Purple Fame image. So instead of using the purple fame image that Warhol created and it was published in Vanity Fair, Vanity Fair decided they wanted to use one of the other works that Warhol created, one of those other 15 collection collective works and the Prince Collection. And then that is what eventually made it onto this commemorative edition of Vanity Fair. And this is what triggers the lawsuit, because Goldsmith finds out about it and at this point says, hold on, wait a minute. That is my image that you guys are using. And. Uh, so effectively, Goldsmith comes after Warhol as well as Vanity Fair and says, Look, I don't know. You guys didn't have permission. Vanity Fair had a license, I should say, to use the image, but Warhol did not. Uh, and ultimately, Vanity Fair also paid Warhol north of $10,000 in order to use this image in their commemorative edition. But Goldsmith didn't earn anything from, you know, Vanity Fair's use of this or Warhol's use of the of her image to create the other prints collection images either. And this is where Goldsmith and Warhol start to litigate. So we get to the litigation and. Warhol Foundation. Goldsmith founds a copyright infringement claim against Andy Warhol and says, look, they they copied my work without permission. Right. And the Warhol Foundation says the courts ended up saying, listen, we agree that there was copying here. There was a claim for copyright infringement as far as liability, that there's a prima facie case here. But then Warhol says, listen, we didn't need to get permission because there's fair use. And that is what the courts initially address here is whether or not Andy Warhol's use of Goldsmith's photo was fair use. And that's what the district court initially argued and said. The district court, again, relying on the Campbell case that we talked about before, said, look, we believe that Warhol's use of Goldsmith's image was a transformative use. It provides a different new meaning in message. And because it does, factor number one, weighs in favor and weighs in favor of fair use. And therefore, they ultimately decided this was fair use, there was no infringement. And Goldsmith does what of course, anyone would do. They say, I'm going to appeal and they go to the second the Second Circuit Court of Appeals. And there the court reverses the district court's decision. And it reasoned that this wasn't a transformative use and which is a large departure from the Campbell case, saying, listen, this is not this is not going to be fair use. And ultimately, the Andy Warhol Foundation says we're going to appeal to the Supreme Court. What's key here is that the focus is largely on the first factor. There's not a lot of briefing on the other three factors. So the court is going to be considering here purpose and character of the use. Or as we mentioned, under the Campbell case, there's a focus on the transformative nature. Does it convey a new message or meaning? And that is effectively what the district court held and said. There's a transformative it's transformative here. Warhol's use of the image conveys a different use and meaning in message. Second Circuit said, We're not focusing strictly on transformative use. We're going to focus on purpose and character. And they said, ultimately, no, we disagree with you. We don't think that this is fair use and found in favor of Goldsmith. So Warhol appeals to the Supreme Court, and that's how we get this decision before the Supreme Court. So the arguments that were considered by the court. So a few things. One was purpose and character. The court asked specifically if purpose and character should be addressed separately, meaning should the court look at purpose and should the court look at character independently? Ultimately, in a way, some people argue now is this going to break out the arguments into or fair use factors in the five factors we're looking at purpose of the purpose of the work, character of the work, and then add in the other three. What would this do to other precedent and existing copyright fair use decisions that, like most scholars, kind of look at purpose and character? It's kind of a magic words and don't really split out and say purpose. We're going to look at the purpose and then we're separately going to look at the character. Again, as I mentioned, a lot of courts really looked at, is it transformative? They relied on the Campbell case from the Supreme Court in 1994 and said purpose and character means we're looking for does it convey a different new message and meaning? And that was something that the court considered here. Other things. Evidence for conveying a new message court dived into. What evidence really needs to be shown is, is is this actually transformative? What what should we actually be looking at? Who are also looked at derivative works versus transformative. Right. So derivative works are effectively works that we talked a little about. What are creative works lets you use books for example. And I said someone who writes a book has the exclusive right to reproduce, distribute, but also make derivative works of that particular work. So derivative work is a work that derives from that underlying original work. So a good example I like to use is Harry Potter. Harry Potter books written by J.K. Rowling. Right. And you know, MGM or whatever. Forget the film studios that actually created the the film adaptations of those books. They actually had to get permission from J.K. Rowling. They couldn't just go out and say, oh, this book looks great. Let's capture these characters and put them on the screen and bring them to life. That was a derivative work. So these that. J.k. Rowling in that example would have to give them permission. They'd have to pay her a fee. She'd give them a license in order to be able to create the wonderful Harry Potter movies that we've come to love and enjoy. But that that brought an argument, you know, derivative works does if we look at if a work is transformative and allow someone to just, you know, kind of skirt past, you know, through with a fair use argument saying, oh, well, it conveys a different new message and meaning, you know, are we infringing on like the derivative work, right? That is exclusively given the copyright owners. So that was something else that the court had to look at. And the other one argument that we heard from some of the some of the briefs was are all photos subject to copyright infringement. There's an argument that not all photos should be subject to copyright or excuse me, copyright protection. Are they going to be are all photos going to be subject to copyright protection or not? That was also an argument that the court at least considered. But ultimately, the court said sided with the Second Circuit and said, look, Goldsmith's going to win here. There's not going to be any case for fair use here. And the court relied heavily on the facts. And they, again, broke this down and looked at purpose versus character. And they said the intended purpose of the use. Right. And they looked and said, Goldsmith largely uses this image and she licenses it. She used the image and works to depict that that depict prints or discuss prints. Take, for example, that Vanity Fair publication. That image is largely being used that Goldsmith had taken of prints in the early 1980s, 1970s, that they use in a lot of articles to depict and discuss prints, just like the adaptation that Warhol created was also used in, you know, vanity fairs, publications to depict and discuss prints, prints. Also, the court looked at the sales of the work, Right? Uh, the goldsmith had licensed and made sales on that particular image. And then Andy Warhol did the same, right? With those particular adaptations in the Prints collection. So Purpose leaned against a finding of fair use. They were all the same. So the court kind of again departing from the transformative reliance that we got from Campbell, looked at, okay, what's the intended purpose of the use of the work? And if they're the same, it's going to likely weigh against a finding of fair use. If they're different, then it will weigh in favor of fair use. Then they also looked at character. Are they commercial or non-commercial? And here the court simply got and said, Look, character of the work. Both the works are commercial in their nature. In that case, since they're both commercial ways against the finding of fair use. Now let's talk a little bit about the impact of Harvey Goldsmith. So again, I mentioned pre war. Harvey Goldsmith, right? Everything was more content based. Courts were looking at transformative emphasis. What is the content? We're comparing the works themselves and from comparing the works themselves, are we looking at is there a different meaning? Is there a different message? Right. That is what the law that is the law that we got from Campbell in 1994 from the Supreme Court. But then we see in the post war hog the goldsmith. Now it's a purpose use analysis. Courts are going to start looking at, you know, what is the intended purpose of the work and is it different enough from the subsequent use to justify copying and give a fair use defense? We also see a departure again from Google again and Campbell. Both these cases, Campbell's set in place this transformative standard, meaning if the work is different in meaning or message from its source. Google re-emphasized this, seeing the Supreme Court just two years ago in a decision, rely again on transformative nature and say, listen, finding a work to be copying of source code to be transformative and then finding fair use in favor of Google. Right. We see that. But now both of these cases are going to be called into question and now we see a lot more. There's going to be a lot more factual inquiries that can be made in many of these cases moving forward, whether or not something is going to be fair use or not, it's not enough just to look at the content. You're going to have to look at the context. And the purpose of how it works are being used. And then lastly on the impacts of Warhol v Goldsmith, the intended again, as I mentioned, courts are going to look at the intended use of a particular works. This is likely going to impact appropriation artists like Warhol and others that borrow or inspired by other particular works. Um, the other thing is, again, this emphasizes the fact that fair use is a mixed question of law and fact. Courts are going to require you to dive more into the facts here and say, okay, what is the intended purpose of these works? Are their licenses being provided or not? Um. Uh, are these being sold? Right. Who are they being sold to? What is the purpose of these particular works? Are they being used to depict or express a similar individual or expression? Those are things that the courts and as well as parties are going to have to look at in the wake of the Warhol Goldsmith case. And lastly, you know, as a note, I think also we're going to see, you know, using photos to train generative artificial intelligence models are also going to be called into question now that we have these generative artificial intelligence tools that largely like to use existing images. There is an argument before this case that it's transformative, right? You're using it. It's conveying a different, you know, meaning and message, using an AI to create or to learn from these particular works. But now that's going to require a lot more detailed analysis into the facts, which makes it a lot more raises a lot more questions as to whether or not uses of artificial intelligence with existing copyrighted works are actually going to be infringing or not or considered to be fair use. And with that, I want to thank everyone for joining me for this CLE presentation and this discussion on the Warhol decision. Have some contact information here if you have any questions. But thank you for your time today.

Presenter(s)

CG
Caleb Green
Associate
Dickinson Wright

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                                                                • 1.0 general
                                                                Available until

                                                                July 11, 2025 at 11:59PM HST

                                                                Status
                                                                Approved
                                                                Credits
                                                                  Available until
                                                                  Status
                                                                  Not Offered
                                                                  Credits
                                                                  • 1.0 general
                                                                  Available until

                                                                  July 21, 2025 at 11:59PM HST

                                                                  Status
                                                                  Approved
                                                                  Credits
                                                                    Available until
                                                                    Status
                                                                    Not Offered
                                                                    Credits
                                                                      Available until
                                                                      Status
                                                                      Not Offered
                                                                      Credits
                                                                        Available until
                                                                        Status
                                                                        Not Offered
                                                                        Credits
                                                                          Available until
                                                                          Status
                                                                          Not Offered
                                                                          Credits
                                                                            Available until
                                                                            Status
                                                                            Not Offered
                                                                            Credits
                                                                            • 1.0 general
                                                                            Available until

                                                                            December 31, 2026 at 11:59PM HST

                                                                            Status
                                                                            Self-apply
                                                                            Credits
                                                                              Available until
                                                                              Status
                                                                              Not Offered
                                                                              Credits
                                                                                Available until
                                                                                Status
                                                                                Not Offered
                                                                                Credits
                                                                                  Available until
                                                                                  Status
                                                                                  Not Offered
                                                                                  Credits
                                                                                  • 1.0 general
                                                                                  Available until

                                                                                  August 2, 2025 at 11:59PM HST

                                                                                  Status
                                                                                  Approved
                                                                                  Credits
                                                                                    Available until
                                                                                    Status
                                                                                    Not Offered
                                                                                    Credits
                                                                                    • 1.0 general
                                                                                    Available until

                                                                                    July 11, 2025 at 11:59PM HST

                                                                                    Status
                                                                                    Available
                                                                                    Credits
                                                                                      Available until
                                                                                      Status
                                                                                      Not Offered
                                                                                      Credits
                                                                                        Available until
                                                                                        Status
                                                                                        Not Offered
                                                                                        Credits
                                                                                        • 1.0 general
                                                                                        Available until

                                                                                        December 31, 2026 at 11:59PM HST

                                                                                        Status
                                                                                        Approved
                                                                                        Credits
                                                                                        • 1.0 general
                                                                                        Available until

                                                                                        July 11, 2025 at 11:59PM HST

                                                                                        Status
                                                                                        Available
                                                                                        Credits
                                                                                        • 1.4 general
                                                                                        Available until

                                                                                        May 2, 2025 at 11:59PM HST

                                                                                        Status
                                                                                        Approved
                                                                                        Credits
                                                                                          Available until
                                                                                          Status
                                                                                          Not Offered
                                                                                          Credits
                                                                                          • 1.0 law practice management
                                                                                          Available until

                                                                                          July 11, 2025 at 11:59PM HST

                                                                                          Status
                                                                                          Available
                                                                                          Credits
                                                                                          • 1.0 general
                                                                                          Available until
                                                                                          Status
                                                                                          Pending
                                                                                          Credits
                                                                                          • 1.0 general
                                                                                          Available until

                                                                                          July 11, 2025 at 11:59PM HST

                                                                                          Status
                                                                                          Available
                                                                                          Credits
                                                                                          • 1.0 general
                                                                                          Available until
                                                                                          Status
                                                                                          Unavailable
                                                                                          Credits
                                                                                            Available until
                                                                                            Status
                                                                                            Not Offered
                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Pending
                                                                                              Credits
                                                                                              • 1.0 general
                                                                                              Available until

                                                                                              January 16, 2026 at 11:59PM HST

                                                                                              Status
                                                                                              Approved
                                                                                              Credits
                                                                                                Available until
                                                                                                Status
                                                                                                Not Offered
                                                                                                Credits
                                                                                                  Available until
                                                                                                  Status
                                                                                                  Not Offered
                                                                                                  Credits
                                                                                                    Available until
                                                                                                    Status
                                                                                                    Not Offered
                                                                                                    Credits
                                                                                                      Available until
                                                                                                      Status
                                                                                                      Not Offered
                                                                                                      Credits
                                                                                                      • 1.15 general
                                                                                                      Available until

                                                                                                      July 19, 2024 at 11:59PM HST

                                                                                                      Status
                                                                                                      Approved
                                                                                                      Credits
                                                                                                      • 1.0 general
                                                                                                      Available until

                                                                                                      July 31, 2024 at 11:59PM HST

                                                                                                      Status
                                                                                                      Approved
                                                                                                      Credits
                                                                                                        Available until
                                                                                                        Status
                                                                                                        Not Offered
                                                                                                        Credits
                                                                                                        • 1.0 general
                                                                                                        Available until

                                                                                                        July 11, 2025 at 11:59PM HST

                                                                                                        Status
                                                                                                        Approved
                                                                                                        Credits
                                                                                                          Available until
                                                                                                          Status
                                                                                                          Not Eligible
                                                                                                          Credits
                                                                                                          • 1.0 general
                                                                                                          Available until

                                                                                                          July 11, 2025 at 11:59PM HST

                                                                                                          Status
                                                                                                          Available
                                                                                                          Credits
                                                                                                            Available until
                                                                                                            Status
                                                                                                            Pending
                                                                                                            Credits
                                                                                                              Available until
                                                                                                              Status
                                                                                                              Not Eligible
                                                                                                              Credits
                                                                                                                Available until
                                                                                                                Status
                                                                                                                Not Eligible
                                                                                                                Credits
                                                                                                                  Available until
                                                                                                                  Status
                                                                                                                  Not Offered

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