Is the “transformative” use defense unfair?

“Let’s Go Crazy” is not simply a song by Prince, but, potentially, the theme song for the Supreme Court’s willingness to explore the doctrine of copyright fair use.

After a very narrow fair-use decision in the previous term, SCOTUS is again preparing to address the boundaries of the fair use defense.

Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith centers around artwork created by Andy Warhol, who manipulated a then-unpublished image which had been taken by the prominent photographer Lynn Goldsmith in 1981. SCOTUS agreed to take up the case after a Second Circuit decision held that Warhol’s use of the images in question was not a fair use.

The Warhol work is based on a black-and-white photo taken by Goldsmith that she licensed to Vanity Fair. The magazine asked Warhol to create a portrait of Prince based on that photo, which ran in Vanity Fair in 1984. Warhol went on to use the photo to create 15 additional drawings and paintings of Prince. Vanity Fair used one of these portraits in its posthumous tribute to the musician, which is how Goldsmith learned of the existence of the 15 additional portraits.

The Warhol work provides a seemingly unambiguous use of an image of Prince as he appears in the Goldsmith photo, but with significant changes.

Throughout the subsequent litigation, and now for SCOTUS, the issue at hand is “whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es]’ from its source material.”

In a side-by-side comparison, the Warhol work, known as the Prince Series, provides a seemingly unambiguous use of an image of Prince as he appears in the Goldsmith photo, but with significant changes – most notably, the dramatic use of colorization.

Warhol is perhaps the most famous pop artist ever. A keystone of his massive, influential body of work is the numerous screen prints that depict well-known personalities. A determination that Warhol’s pop art is not transformative could have ramifications for other artists and for the art world.

The common-law doctrine of fair-use was codified by Congress in 1976,^[1] and the Copyright Act now expressly recognizes fair use as a defense, listing four non-exclusive factors courts should consider in determining whether a use is deemed “fair”: 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for the copyrighted work.

Here, the question clearly goes to whether something new was created with “a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The “something new” must be separate from a merely derivative work. Thus, the analysis should entail discussion of how much change to the appearance, meaning or combination thereof is necessary to create a “new” or transformative work.

A fair-use analysis is generally determined on a case-by-case basis, which makes the outcome difficult to predict. As such, the case before SCOTUS may provide additional concrete factors to consider when evaluating the “transformative” prong of a fair-use defense.

The case is Andy Warhol Found, Inc. v. Goldsmith, No. 21-869, ___ S. Ct. ___, 2022 WL 892102 (Mar. 28, 2022).

^[1] Copyright Act § 107. Limitations on exclusive rights: Fair use