Supreme Court grants Warhol petition seeking clarification on fair use
Today, the Supreme Court agreed to hear Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case pitting the famous artist’s foundation against the photographer of a photo of the musician Prince. The Court’s decision is likely to have big implications for copyright law’s “fair use” doctrine.
Background on Fair Use
As the Supreme Court described in the 1990 case Stewart v. Abend, the fair use doctrine recognizes that “rigid application” of the copyright laws “would stifle the very creativity which [they are] designed to foster.” Congress codified four factors that courts should consider when deciding whether copyright infringement should be excused as fair use:
1. “the purpose and character of the use,”
2. “the nature of the copyrighted work,”
3. “the amount and substantiality of the portion used,” and
4. “the effect of the use upon the potential market for or value of the copyrighted work”
The first factor is the most important: new works that are “transformative” “lie at the heart of the fair use doctrine’s guarantee of breathing space.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). A work is “transformative” if it “adds something new” by “altering [the source material] with new expression, meaning, or message.” Id.
Summary of the Case
Andy Warhol, the famous pop artist, drew a set of portraits of the musician Prince called the Prince Series. These drew inspiration from a photo of the artist by Goldsmith. While Goldsmith characterized her photo as showing Prince as “a really vulnerable human being” concerned with “immense fears” about his stardom, Warhol claimed the Prince Series instead reflected “a flat, impersonal, disembodied, mask-like appearance” of the musician.
When Goldsmith learned of the Prince Series in 2016, she contacted the Andy Warhol Foundation, which holds the copyrights to the paintings, claiming that they infringed her copyright in her photo. In response, Warhol filed a declaratory judgment action in New York, asking a federal court to declare that the Prince Series didn’t infringe, or if they did, that they fell under the “fair use” exception of copyright law.
The district court held that Warhol’s paintings were fair use because its incorporation of a new meaning and message was “transformative” and distinct from the photo from which it drew. Warhol “transformed” an intimate photo into “an iconic, larger-than-life figure,” stripping Prince of the “humanity . . . embodie[d] in [the] photograph.” Goldsmith appealed to the Second Circuit.
The Second Circuit reversed the district court. Although it agreed that Warhol’s art “give[s] a different impression” than the original photograph, it wasn’t transformative, and thus not fair use, because the photo “remain[ed] the recognizable foundation upon which the Prince Series is built.”
In December 2021, Warhol petitioned the Supreme Court to review the case and reverse the Second Circuit. It claimed that the Second Circuit’s decision “threatens a sea-change in the law of copyright” since it forbids a court from finding a “transformative” use (and thus fair use) when the new work “recognizably deriv[es] from, and retain[s] the essential elements of, its source material.” This standard, according to Warhol, creates a split from other circuit courts, most importantly the Ninth Circuit (where a lot of copyright litigation takes place since it contains California), which have held that when a new “work makes few physical changes to the original,” it can be transformative if “new expressive content or [a new] message is apparent.”
Goldsmith, for her part, disagreed and argued that Warhol’s petition “attempt[s] to manufacture a circuit split that does not exist.” Instead, she said the Second Circuit correctly applied the test for transformativeness when it held that the Prince Series failed to “add[] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
Today, the Supreme Court agreed to hear the case to clarify whether a new work is “transformative” if it conveys a different meaning or message from its source material, or whether courts are forbidden from considering the meaning where the new work “recognizably deriv[es] from” its source material.
What to Expect
The Supreme Court will hear oral arguments beginning in its October 2022 term, with a decision expected to come down no later than May or June 2023. A win for Goldsmith would mean a stricter application of the fair use doctrine since new works that look sufficiently like the source material will have a harder time claiming they should be exempt from copyright law.
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