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SCOTUS, in Warhol Case, Refocuses Copyright Fair Use Analysis

The Supreme Court has refocused the analysis of “fair use” in copyright cases and narrowed the ability of an artist to use the work of another. In last week’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the majority addressed the notion of “transformative use” and reset the standard of one part of the fair use analysis. The first prong of the fair use test evaluates “the purpose and character of the use.”  The ruling sets a broader standard in evaluating and giving importance to the comparative “purposes of the use” of the original and copied versions.

This decision effectively reverses the trend that has expanded the acceptance of a transformative use defense. Artists, composers, and others who borrow from existing sources, need to be more careful about how they use what they take.

The case addresses whether Andy Warhol had the right to license one of his modifications of a photograph of Prince to a magazine for use on its cover. The original photograph was taken by Lynn Goldsmith, who herself licenses her photographs for magazine covers. The Court determined that Goldsmith’s original and Warhol’s copy were both to be used commercially for magazine covers. This “main or essential nature” of Warhol’s usage – licensing the image commercially – overrode the fact that Warhol had, as was his style, created a “flattened, cropped, exotically colored, and unnatural depiction of Prince’s disembodied head [in which Warhol] sought to communicate a message about the impact of celebrity in contemporary life,” as Justice Kagan described in her dissent.
Until this Warhol decision, the Supreme Court’s test since 1994 for “transformative use” had been whether the second work creates “something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message.”

To the current court, Warhol’s new meaning was not sufficient to avoid infringement, because of how Warhol’s image was used. Justice Sotomayor’s majority opinion last week, ruled that “if an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.”

In this case, because the photographer would have used the image commercially for magazine covers, and the dispute was about Warhol’s commercial license of Prince’s image for a magazine cover, there was not a sufficient new purpose. The Court pointed to lead-in to the fair use section of United States Copyright Code to explain that fair use focuses on different types of usage, such as those listed in the Code as “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” and the uses in this case were both for commercial use as magazine covers. Warhol’s same image, when displayed as art, would likely have been deemed to be Warhol’s commentary, and thus a non-infringing transformative fair use.

Although Warhol addressed photographs and images, the new focus of scrutiny would apply to any fair use analysis for any type of creative work.  

A notable sidebar to the decision is the sharp disagreement and strong attacks (a.k.a. trash-talk) between two seemingly likeminded Justices. The comments in various footnotes in Justice Sotomayor’s majority opinion and in Justice Kagan’s dissent make for some lively reading.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com