The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works. In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the U.S. Supreme Court is considering a lawsuit between rock and roll photographer Lynn Goldsmith and the Andy Warhol Foundation (AWF) regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The question is whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constitutes a fair use. Underlying the case are core questions about the nature and scope of fair use.

Under current copyright law, the owner of a copyright in a photograph has the exclusive right to copy, distribute, and publicly display the photo, and to create derivative works based on it. Goldsmith took the photo of Prince in 1981 when he was still a rising talent, but by 1984, he was a star. In 1984, Vanity Fair commissioned Warhol to create a cover based on Goldsmith’s photo, which he did; the magazine paid Goldsmith a licensing fee for Warhol’s use of the photo as an artist reference. On his own, Warhol then created additional artworks based on Goldsmith’s photo, without a license.

Andy Warhol died in 1987, having never exhibited the rest of the “Prince Series,” and following his death AWF took over management of his estate. In 2016, Prince died, and Conde Nast published a special “The Genius of Prince” magazine, with a different entry from the Prince Series  on its cover. AWF received a license fee from Conde Nast, and Goldsmith did not. This lawsuit followed, and it has focused on whether the actions of Warhol and AWF constituted fair use.

Fair use developed in the United States as a judge-made copyright doctrine providing that certain classes of uses of works—such as criticism, commentary, and parody—are not infringing even though they would be infringing if not used in that way. In 1976, the federal copyright statute formally integrated fair use into its text at section 107, providing that fair use factors included the purpose and character, amount and substantiality, and market effects of the use, along with the nature of the original work. In a case involving the use of the Roy Orbison song “Pretty Woman” by the rap group 2 Live Crew, the U.S. Supreme Court clarified that the key question in that case was the purpose and character of the use, and more specifically whether the use was “transformative”—that is, “altering the first with new expression, meaning, or message.” The Supreme Court applied this standard last term in a case about highly functional computer software.

The questions before the Court in the upcoming case are 1) whether the use of Goldsmith’s photo is transformative, and 2) how much to weigh transformativeness in the fair use inquiry. Generally speaking, advocates of a more expansive view of fair use appeal to stare decisis to argue that the Court should find that transformativeness is dispositive in the fair use analysis. Critics of this approach view the Campbell and Google precedents as unusual cases where the statutory factors were insufficient and argue that this is a more conventional case where those factors should be the lodestar. For its part, the U.S. Government in its amicus brief argues that Warhol’s creation of the Prince Series may have been a fair use, but the 2016 licensure for purposes of a magazine cover was not. Ultimately, whatever happens in this case, it is unlikely copyright law will be quite the same.

Note: The author filed an amicus brief in this case in support of the respondent (Goldsmith), focused on the tandem history of the exclusive right to create derivative works and of the fair use doctrine.

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