The Supremes Weigh In on Fair Use

Infringement vs Fair Use / Derivative vs Transformative

The saying goes that all art is derivative. Warhol v Goldsmith may factor into copyright evaluations of infringement vs fair use for many years to come.

*Note - AI Generated Image that bears a passing resemblance to Prince and is somewhat in the style of Andy Warhol.

Copyright Law - Where is the line between Infringement and Fair Use

In the 7-2 decision of Warhol v Goldsmith, with Chief Justice John Roberts and Justice Elena Kagan dissenting, the Court found that the Andy Warhol Foundation infringed on the original photographer’s, Lynn Goldsmith’s, copyright of the 1981 photograph of Prince. The court focused on the right of the original copyright owner under the Copyright Act to create derivative works. The Court weighed this right of the original copyright owner against the general right of those in the public to create transformative works. The evaluation of whether a new work is transformative is key, as a sufficiently transformative work will be sheltered from allegations of infringement under the fair use defense. There are few bright line rules in this analysis, which is often subjective, and the Court emphasized that the evaluation of when a derivative work becomes transformative is a matter of degree.

Here, the Supreme Court’s majority opinion focused less on the potentially transformative nature of the silk screen vs photographic image, and more on the commercial nature of the original photographer’s use and the use by the Andy Warhol Foundation in licensing the image. The Court found it compelling that both Goldsmith’s and Warhol’s uses were commercial in nature, and nearly identical, as both were used to illustrate stories about Prince in a magazine.

The majority did not address whether their analysis would extend to prints of Warhol images sold in a museum gift shop or online, each of which are commercial in nature. The Court also focused on the failure to pay a license fee to Goldsmith, but did not address what impact the decision would have on scenarios where an original copyright owner refuses to license an image or charges a fee such that effectively limits access to create art to those who have the ability to pay.

It remains to be seen if the Court’s decision will foster originality of thought in the art world or stifle creativity as artists fear potential claims of copyright infringement. In the dissenting opinion, Justice Elena Kagan, joined by Chief Justice Roberts, focus on the latter, stating that the majority opinion’s focus on the similar commercial nature of the uses and not on the transformative nature of the art itself is misplaced under the fair use analysis and therefore shifts the doctrine of fair use. The dissent argues that the majority’s opinion will inevitably result in the restriction of the fair use doctrine and will “hamper creative progress and undermine creative freedom.”

If you have questions about the line between fair use and infringement, request an appointment to discuss.