Fair use in visual arts

Penn Carey Law’s Cynthia Dahl weighs in on the SCOTUS decision regarding Andy Warhol and fair use in art.

Cynthia Dahl, director of the University of Pennsylvania Carey Law School’s Detkin Intellectual Property and Technology Legal Clinic and practice professor of law, reflects on the Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which held that Warhol’s silkscreen portrait of Prince adapted from photographer Lynn Goldsmith’s photograph was not “fair use” under copyright law.

cynthia Dahl.
Cynthia Dahl, director of the University of Pennsylvania Carey Law School’s Detkin Intellectual Property and Technology Legal Clinic. (Image: Courtesy of Penn Carey Law)

She writes, “The Supreme Court has ruled 7-2 in the case of The Andy Warhol Foundation v. Goldsmith that Andy Warhol’s use of a photograph of the rockstar Prince was not transformative enough to be excused by fair use, and therefore infringed photographer Lynn Goldsmith’s copyrights. While the justices ruled on the facts presented, the question lurking in the background of the case was to what extent artists should be allowed to freely use other artists’ works when creating their own, and the case has wider implications for other art forms, like music and adaptions of literary works.”

“Copyright law usually guarantees an author the right to exclude others from using their creations, including the right to create ‘derivative works.’ However, because it is important to support free expression, as well as inspire new works, U.S. copyright law forgives what would otherwise be infringing behavior through a ‘fair use’ defense. There is a four-factor balancing test to determine whether the fair use defense should apply.”

“The Court in Warhol was only focused on the first factor of the fair use test, concerning the purpose and character of the (new) use, and specifically the role that ‘transformative use’ has played in the analysis. Courts have found a work ‘transformative’ when it has applied new technology or new uses to the source art, but since the works in this case were each pieces of visual art, the question became whether Warhol had transformed Goldsmith’s photograph by adding new expression and meaning. Had Warhol transformed Goldsmith’s photograph through new expression and meaning, his use would likely not infringe.”

“The Warhol ruling is important for a number of reasons. First, it acknowledges the murky boundary between an author-controlled derivative work and a third party-excused ‘transformative’ work. Each is based on another original work, but the Court draws a distinction in the purpose of the subsequent work as well as the degree of change. The Court has stated that transformative works must grant a new purpose and character to the old work that goes beyond changes that could be described as merely derivative.”

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