Supreme Court Set to Hear Transformativeness Fair Use 'Warhol' Case

In the October 2022 Term, the Supreme Court is set to decide whether courts assessing transformativeness under the first fair-use factor of the Copyright Act may consider "the meaning of the accused work where it 'recognizably deriv[es] from' its source material." Andy Warhol Foundation for Visual Arts v. Goldsmith, 11 F.4th 26 (2d Cir. 2021), cert. granted, 142 S. Ct. 1412 (2022). The case may profoundly affect the fair use analysis, and in turn, the scope of copyright protection for many works.

The Copyright Act

The Copyright Act provides "the fair use of a copyrighted work … is not an infringement of copyright," 17 U.S.C. §107, and provides four non-exclusive factors to be weighed by courts: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.

The District Court Decision

In 1981, Lynn Goldsmith, a photographer primarily focused on photographing celebrities and musicians, photographed the musical artist Prince. See, 11 F.4th at 33. In 1984, Goldsmith licensed one of those photographs to Vanity Fair magazine to be used as a reference for an artist to "create a work of art." Id. at 34. The license permitted Vanity Fair to publish an illustration based on the photograph and required that the illustration be accompanied by an attribution to Goldsmith. Id.