What's New In Fair Use?
Transformation and Market Harm in Whyte Monkee Rehearing and Upcoming GenAI Cases
In 2023, the Supreme Court issued a blockbuster fair use ruling, Warhol v. Goldsmith. Warhol was perceived by many as (1) rolling back the transformative tide in fair use doctrine; and (2) emphasizing the "commercial" nature of a secondary use. But the Supreme Court left many questions unanswered in Warhol: are most so-called "productive" uses of copyrighted works, wherein the secondary user creates new expression using a plaintiff's work, now under threat, so long as the defendant profited off the work? And how does the "commercial" nature of a defendant's use under factor one interact with the other most important fair use factor, factor four? Pending cases this year are poised to answer, at least in part, some of these important questions—including the Tenth Circuit’s upcoming decision in Whyte Monkee v. Netflix, and a slew of litigation based on training large language models on copyrighted works and using those models to generate text. Join us for a discussion of these issues with three expert panelists.
Named one of the 10 most innovative lawyers in North America in 2024 by the Financial Times, Andy Gass is a partner at Latham & Watkins and a lecturer at the UC Berkeley Law School. He represents technology companies in high-stakes disputes implicating copyright and antitrust law—having argued, in one memorable 8-day stretch in January 2025, the motions to dismiss in both New York Times v. OpenAI and United States v. Live Nation. Other notable clients whom Andy has represented in copyright cases in recent years include The Andy Warhol Foundation, Anthropic, Amazon, Apple, Meta, Pandora, Spotify, Suno, Udio, Roblox, and many others. Andy was recently awarded the Vanguard Award for achievements in Intellectual Property Law by the California Lawyers Association. He lives in Healdsburg, California.
Xiyin Tang is a Professor of Law at UCLA School of Law. She has previously served as a lead counsel for Facebook and an associate at Mayer Brown LLP and Skadden Arps Slate Meagher & Flom LLP, where she worked on a variety of transactional and litigation matters in the technology, media, and entertainment sectors. Tang’s research focuses on the roles that technological evolution plays in the law of intellectual property. Her publications have appeared or are forthcoming in the Columbia Law Review, Michigan Law Review, New York University Law Review, and Yale Law Journal, among others. She received her J.D. from Yale Law School, where she was Editor-in-Chief of the Yale Journal of Law and Technology, and her B.A. from Columbia University.
Jef Pearlman is a Clinical Professor of Law and the Director of the IP & Technology Law Clinic at USC Gould School of Law. Under his supervision, clinic students represent individuals, small business, and nonprofits in a wide variety of IP-related matters, from drafting licenses to advising documentary filmmakers to drafting amicus briefs. Prior to joining Gould in 2018, Jef spent four years as the clinical supervising attorney and lecturer in law in the Juelsgaard Intellectual Property and Innovation Clinic at Stanford University. Prior to teaching, Jef received bachelor’s and master’s degrees in computer science from MIT and his JD from Stanford Law School. After law school, he clerked for the Honorable William W. Schwarzer in the Northern District of California and, sitting by designation, on the 1st, 6th and 9th circuits. Pearlman was awarded the Bruce J. Ennis Fellowship for First Amendment Law, which enabled him to advocate for sound intellectual property policy at the Washington, D.C.-based nonprofit, Public Knowledge. He then returned to the Bay Area, where he litigated patent disputes and advised clients on open-source software at Covington & Burling LLP.
