There have been many conflicting opinions regarding the impact of the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, with some circles claiming that the decision “Changed the Future of Art” and others applauding the Court for providing clarity on fair use in copyright. Given the varied opinions on the outcome, the purpose of this article is to highlight the changes and the potential impact of the decision. In order to do that, it is important to first explain the fair use framework before diving into the details of the Court’s decision.
Fair use in copyrights enables someone other than the copyright owner to copy, perform, transmit, distribute copies, or display a copyrighted work under certain circumstances without it being considered infringement. The concept of fair use as a limitation on the exclusive rights of a copyright holders is codified in the Copyright Act, 17 U.S. Code Section 107, which describes fair use for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not infringement and lays out a four factor test to assist in the determination of whether a use is protected as fair use. That four factor test includes the following factors to be considered:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educations purposes;
- The nature of the copyright work,
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
- The effect of the use upon the potential market for or value of the copyrighted work.
The first factor has traditionally been the primary focus of the fair use analysis and is commonly referred to as the transformative use test. This test was first established in a case between the rap group, 2 Live Crew, which used portions of the song “Oh, Pretty Woman” in the opening of one of their songs. The Court in that decision ruled that 2 Live Crew’s use of the portion of “Oh, Pretty Woman” was transformative because it was a parody of the original. Similar examples of transformative use of copyrighted materials typically involve use of copyrighted material for educational or commentary purposes but also extends to libraries making digital copies of books for the purpose of 1) preservation, 2) full-text search and 3) electronic access for disabled patrons who cannot read print versions which the court determined was transformative use.
Stepping back to the Supreme Court’s Warhol decision while keeping the transformative use in mind, we can go into the relevant details of the Warhol case. The case involved two artists, Andy Warhol and Lynn Goldsmith. Lynn Goldsmith specialized in rock-and-roll photography and had her work published in magazines including Life, Time, Rolling Stone and People. Andy Warhol was a visual/pop artist with works appearing in museums around the world. In 1984, Lynn Goldsmith licensed one of her photographs of the artist Prince to Vanity Fair for use as an artist’s reference. This reference photograph was then used by Andy Warhol to make a silkscreen which was featured in Vanity Fair. Lynn Goldsmith was credited as the owner of the source photograph and was paid $400. The license between Lynn Goldsmith and Vanity Fair in 1984 under the condition that the photo be used for one time only.
Unbeknownst to Lynn Goldsmith, Andy Warhol not only created the one silkscreen for Vanity Fair, he also derived 15 additional works of Prince using the reference photo. One of those additional works was later licensed by the Andy Warhol Foundation for the Visual Arts to Conde Nast for $10,000. Importantly, the purpose of this license to Conde Nast was to publish an article on the artist Prince, the same purpose as the original license with Vanity Fair. When Lynn Goldsmith approached the Andy Warhol Foundation expressing her belief that their use of her photograph and the resulting work that was licensed to Conde Nast infringed her copyright, the Andy Warhol Foundation sued Lynn Goldsmith for declaratory judgement that the works were non-infringing or, in the alternative, that they made fair use of Lynn Goldsmith’s photograph.
The District Court granted summary judgement for the Andy Warhol Foundation, focusing on the first factor and determining that the use was transformative because looking at the works of Andy Warhol and the reference photograph side-by-side, the court opined that they have difference character and give a new expression to Lynn Goldsmith’s photograph. It is important to see the side-by-side, which is copied below, because speaking as someone who is not artistic it is easy to argue that adding what appears to mostly be an orange background does not transform the photo from a picture of Prince to something more, but that is the difficulty with a test that can oftentimes hinge on subjective interpretation of artistic expression that is not typically in the wheelhouse of the average attorney or judge. The District Court believed the Warhol silkscreen on the right transformed the Prince depicted on the left from a vulnerable, uncomfortable person to an iconic, larger-than-life figure and that the picture on the right is immediately recognizable as a Warhol rather than a photograph of Prince.
The Court of Appeals, perhaps being less knowledgeable about artist expression or perhaps viewing the works from a more objective perspective that both images are clearly Prince, reversed and remanded after holding that all four fair use factors favored Lynn Goldsmith. Focusing on the first factor, the Court of Appeals rejected the lower court’s argument that transformative is met when any new aesthetic or new expression is added to source material. The Court of Appeals focused on whether the work’s (orange Warhol on the right above) use of its source material (Lynn Goldsmith photo on left) is in service of a fundamentally different and new artistic purpose and character, adding that the transformative purpose must be something more than the imposition of another artist’s style on the primary work. The opinion also made clear that the lower court’s belief that the work was transformative because it is immediately recognizable as a Warhol was wrong and would only create a celebrity-plagiarist privilege.
The Supreme Court granted certiorari and summarized the issue fairly succinctly by describing the first factor purpose test for fair use in this case as portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and the Andy Warhol Foundation’s copying use of it share substantially the same purpose and that purpose was commercial in nature. The last part of that summary by the Court is important because the preamble to the fair use defense to copyright infringement lays out a number of examples that reflect the sorts of copying that courts and Congress have found to be fair use such as criticism, comment, news report, teaching, scholarship or research. Each of these uses serve “a manifestly different purpose from the work itself.” When viewed together, the commercial use of a portrait of Prince to depict Prince in articles about Prince, based off of a reference photo that has been licensed for commercial use on its own to depict Prince in magazine stories about Prince, is not transformative use simply because it was created by Andy Warhol.
The Court rightly refocused the test, in this specific instance, away from the subjective review of the level of transformation by one artist of another artist’s work and directly to the purpose of the use in determining whether fair use is a viable defense to copyright infringement. The 2 Live Crew example described above was not a case where 2 Live Crew used the full lyrics and simply sang it differently to make it recognizable as 2 Live Crew, instead, it was a parody that used an immaterial amount of the source material to mimic the original. The Court provides an additional and pointed example referencing Andy Warhol’s use of the Campbell’s Soup can and logo to create his Soup Can series. Andy Warhol’s Soup Can series depicts Campbell’s copyrighted logo that it uses for advertising purposes; however, Andy Warhol’s purpose in creating the Soup Can series was not to advertise and increase sales on behalf of Campbell’s but was for the purpose of artistic commentary on consumerism. The fact that Campbell’s benefitted from the purpose behind Andy Warhol’s series and sold more soup cans had no bearing on the purpose being commentary which is directly implicated in the preamble to the fair use exemption.
Dissenting opinions by the Court and substantial commentary by artists and others who have relied on fair use paint a picture that would have one believe that the fair use exemption has been forever changed and that under this new approach, no amount of artistic creativity will provide a fair use defense for commercial works. In my opinion, those concerns are overblown due to Supreme Court’s narrow ruling in this cases that benefited from a very specific set of facts which the Court highlighted when describing the purpose of the allegedly infringing use of portraits of Prince used to depict Prince in magazine stories about Prince. This is further narrowed by the original license that restricted the use of the source photograph to one time use by Vanity Fair. With those limitations in mind, the narrow ruling by the Supreme Court aligns with the purpose of the original copyright act and the balance that must be met between creative freedom and protecting original works of authorship.