The Future of Fair Use: Will Supreme Court Apply the Same ‘Transformative’ Analysis to a Photograph as It Did to Software?

In April 2021, the Supreme Court decided Google LLC v. Oracle Am., Inc. finding that Google’s direct copying of 11,500 lines of software code for the Java interface (now owned by Oracle) was exempt from copyright infringement because it fell under the “fair use” exemption. (141 S. Ct. 1183 (2021)). The Java interface at issue was a popular platform for programmers to write programs in Java, one of the most commonly used software languages. Google had directly copied 11,500 lines of code and inserted it into code that Google had written itself.

The fair use exemption balances copyright owners’ interests with public interests by exempting certain uses (such as for parodies) from infringement. The fair use exemption is codified in the Copyright Act, which states that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching … , scholarship, or research, is not an infringement of copyright.” (17 U.S.C. §107).