Skip to main content

Fair Use in Visual Arts

May 24, 2023

black and white photograph of Prince / orange silkscreen print of Prince
Prince photograph by Lynn Goldsmith / Andy Warhol “Orange Prince”

Practice Prof. Cynthia Dahl writes that the Andy Warhol SCOTUS decision “has wider implications for other art forms, like music and adaptions of literary works.”

Cynthia Dahl, Director of the University of Pennsylvania Carey Law School’s Detkin Intellectual Property and Technology Legal Clinic and Practice Professor of Law, has issued the following statement 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:

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.

Cynthia Dahl, Director of the Detkin IP and Technology Legal Clinic Cynthia Dahl, Director of the Detkin IP and Technology Legal ClinicCopyright 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.

According to the Court, adding new expression or meaning was an important factor to consider, but was only part of the fair use analysis. After all, most derivative works add new expression or meaning to original works, and this is a right reserved for the original author. The Court stated that for work to be transformative, the copying must be justified to create a work with “further purpose or different character….and the degree of difference [between old and new works] must be balanced against the commercial nature of the use.” In other words, to the extent that copying was necessary to create the new work, it would matter less that the new use was commercial. But to the extent that copying was not as necessary to create the new work, the more commercial the use, the less likely the copying would be excused as fair use. Reasoning that the Warhol silkscreens had the same purpose and character as Goldsmith’s photographs and were copied for a commercial use, absent another justification for copying, they found this fair use factor favored Goldsmith.

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.

The ruling may also help recalibrate how we weigh the four factors in the fair use test. Recent fair use cases have been subsumed with the concept of transformative use, which has granted the first factor an outsized importance. Yet focusing primarily on whether or not a new work is transformative ignores the other important questions to the analysis, namely the amount and substantiality of the portion copied, the nature of the copyrighted work (whether factual or expressive), and the effect on the market and the value of the copyrighted work. Although in this case the Court was only tasked with evaluating the definition of “transformative use” within the first factor, it took pains to consider the definition in context, specifically considering a discussion of the commercial nature of Warhol’s use and its effect on Goldsmith’s work. It likewise fit the discussion of the first factor into the broader context of the four-factor test. This may have the effect of neutralizing the first factor somewhat and allowing the other factors to carry more weight in the fair use analysis going forward.

Ultimately the Warhol case raises questions about how best to incentivize creation. If the Court had adopted a broader view of “transformative use” to effectively excuse copying whenever an artist added expression or meaning to another work, that might have tipped the balance toward promoting new artwork at the expense of protecting the creation of source art. A narrower definition of “transformative use” restores a bit more power to the authors of the original creations.

Read more of our distinguished faculty’s perspectives on today’s pressing legal issues.