Last week saw the release of a new fair use opinion from Judge Pierre N. Leval, an esteemed jurist on the Second Circuit who has perhaps done more than any other judge to chart a course for fair use in the public interest. There is nothing remarkable about the facts of Romanova v. Amilus, Inc.: a photographer sued a website for using her photo without permission, and the website proprietor didn’t even show up to defend itself. The district court made the unusual move of finding fair use on its own under pretty dubious reasoning; Judge Leval’s opinion reverses that finding, saying the website’s use was not transformative or justified, nor did any other fair use factor favor the use. What’s interesting is that Judge Leval spends 24 pages of the opinion recapitulating the law of fair use as he understands it today, before spending a little over five pages applying that law to these humble facts.

As we’ve mentioned before in this newsletter, Leval’s article bemoaning the sorry state of the law and arguing for a clearer “fair use standard” was later adopted by the Supreme Court, inaugurating an era of fair use jurisprudence that has been extraordinarily beneficial to the public and to the many industries, creators, and professional communities who depend on fair use to protect them from overreaching copyright enforcers. So, what’s Leval’s latest take on the doctrine?

In Romanova, Judge Leval emphasizes the importance of an idea that was also central to his 1991 article: justification. Taking stock of the Supreme Court’s subsequent rulings in Google v. Oracle and Warhol v. Goldsmith, Leval concludes that transformative use and justification for use remain central to the fair use inquiry, then explores the kinds of justifications that have been recognized by courts in other cases. Citing a forthcoming article by Professor Pam Samuelson, Leval explains that, in addition to critique and commentary on the underlying work, courts have recognized “provid[ing] information to the public about the copied work,” “furnishing of valuable information on any subject of public interest,” and “render[ing] a valuable service to the public” as justifications favoring fair use. In cases that don’t involve commentary on the work, Judge Leval says “in most cases [justification is] limited to circumstances in which the benefit was provided without allowing public access to the copy, thus assuring that the copied work not serve as a substitute for the original in the marketplace.” (emphasis added)

This approach should favor fair use for the many AI developers embroiled in litigation, especially in the Second Circuit. Judge Leval makes clear that the only market substitution that matters is the substitution of a copy of the work for that work, an implicit rejection of the unprecedented “market dilution” theory offered by most AI plaintiffs and recently endorsed by the Copyright Office. In Leval’s view, if copies never see the light of day, the substitution threat is nil. Where such uses result in “furnishing valuable information” or “rendering a valuable service,” the use will be transformative and justified under the first fair use factor. Given the influence of Judge Leval personally and of the Second Circuit institutionally on copyright jurisprudence around the country, this opinion could prove to be a significant factor in the outcomes of many future fair use cases, on AI and other subjects.