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Rehearing Sought In 2d Circuit Finding of No Fair Use In Warhol Work
Maybe the U.S. Court of Appeals for the Second Circuit should have been a little more patient. Last September, the court heard argument in The Andy Warhol Foundation for the Visual Arts v. Goldsmith Inc., a fair-use case over Andy Warhol's use of a copyrighted 1981 photograph to create a series of silkscreen prints and pencil illustrations of music icon Prince. A few weeks later, the U.S. Supreme Court heard arguments in the copyrightability/fair-use case of Google v. Oracle.
The Second Circuit ruled first, on March 26, 2021. Circuit Judge Gerard Lynch wrote for the court that simply imposing Warhol's artistic style on Lynn Goldsmith's photograph of the musician Prince did not transform it into a fair use. "An overly liberal standard of transformativeness, such as that embraced by the district court in this case, risks crowding out statutory protections for derivative works," Judge Lynch wrote in The Andy Warhol Foundation for the Visual Arts v. Goldsmith Inc., 992 F.3d 99 (2d Cir. 2021).
Second Circuit Judge Richard Sullivan chipped in in a separate concurrence "to highlight what I see as an overreliance on 'transformative use' in our fair use jurisprudence, generally," and to urge a renewed focus on the fourth fair-use factor in 17 U.S.C. §107 of the Copyright Act — the effect of the use on the plaintiff's potential market for or value of the copyrighted work.
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