By Jack Radford Pitcock, UTRF Legal Extern
In Andy Warhol Foundation v. Goldsmith, the U.S. Supreme Court recently made a significant ruling defining the extent of fair use to copyright infringement.
Copyright is the legal right given to a creator to print, publish, sell, license, perform, film, or record their literary, artistic, or musical materials, and to authorize others to do the same. A valid copyright also entitles the creator to reproduction rights and derivative production rights. However, an exception to these rights is when the activities of someone who wants to use the copyright are considered “fair use.”
Fair use is a legal concept that promotes freedom of expression by permitting the use of copyright-protected works in certain circumstances. Enumerated circumstances include criticism, commentary, news reporting, teaching, scholarship, or research. Generally, a commercial use of copyrighted material is unlikely to be considered fair use.
When evaluating whether fair use applies as a defense to copying, one of the factors a court considers is whether the purpose and character of the use is sufficiently transformative when compared to the original work. In Andy Warhol Foundation v. Goldsmith, the United State Supreme Court ruled on the proper interpretation of transformative use when analyzing a fair use claim.
This case centered around a series of photos by the famous artist Andy Warhol. Warhol used a photograph of the musician Prince that was taken by acclaimed photographer Lynn Goldsmith, and then applied his own artistic style to it. That image was used on the cover of Condé Nast’s 2016 special edition magazine following the tragic death of the artist Prince. Warhol’s work was licensed to the magazine without Goldsmith’s knowledge or approval. Goldsmith, the copyright holder for the underlying photograph, sued for copyright infringement claiming her image was misappropriated.
The Andy Warhol Foundation (“AWF”), the organization that assumed ownership of Warhol’s works after his death in 1987, responded arguing that Warhol’s changes were sufficiently transformative to constitute fair use of Goldsmith’s photograph. Specifically, AWF purported Warhol’s style and artistic intent was adequately different than the purpose and character of Goldsmith’s picture. However, in a 7-2 decision the U.S. Supreme Court disagreed.
The Court explained that the difference must be evaluated in the context of the specific use at issue. The use must be defined by its end purpose, not the intent of the creator. This is due, in no small part, to the fact that judges are not art critics and there must be a certain level of objectivity in copyright analysis.
In this case, the purpose of the original Goldsmith photo was to illustrate a story in a magazine about Prince. Here, the Warhol artwork was also licensed to a magazine to illustrate a story about Prince, albeit many years later. Due to the similar manner of use and commercial nature of the use of the two photographs, the Court ruled against fair use and in favor of Goldsmith.
This ruling is supported by public policy concerns. A finding for Warhol might endorse a range of commercial copying of photos to be used for purposes that are almost entirely the same as those of the originals. If the creator portrays the subject of the photo differently, they could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and then claim fair use.
Copyright law is designed to protect the copyright owner’s exclusive right to reproduce the copyrighted work, prepare work that is derivative from the copyrighted work, and to distribute copies of the copyrighted work through sale or transfer of ownership. The Court’s ruling for Goldsmith stops famous creators, such as Warhol, from having influence to pass a work through the filter of their style and deprive the copyright owner of the potential profits of their original work. However, this is a case-by-case analysis that may not reach the same conclusion each time.
For instance, Warhol’s painting of Prince being licensed to a museum for non-profit purposes may be permitted under fair use. In effect, this ruling clarifies the boundaries of fair use, while also greatly empowering original creators in protecting their interests.
It is important to consult with UTRF prior to taking any action involving copyright or fair use. For questions about copyright, fair use, or any other intellectual property related concerns, please contact the University of Tennessee Research Foundation here.