On October 12, the U.S. Supreme Court held oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The case involves a series of prints and illustrations by the late Andy Warhol that are based on a copyrighted 1981 photo of the late music artist Prince. One image from that series was published – without authorization of the owner of the photo – on a magazine cover in May 2016. At issue in the case is the fair use doctrine and the nature or role of "transformative" works in fair use analysis.
The Petitioner, Andy Warhol Foundation, presented the question to the Court in a hedged manner:
Whether a work of art is "transformative" when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it "recognizably deriv[es] from" its source material (as the Second Circuit has held).
Fair use is an affirmative defense to copyright infringement, and it consists of four non-exclusive factors that are to be considered in evaluating whether the use of a copyrighted work is "fair:" (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. Under Supreme Court precedents such as Campbell v. Acuff-Rose Music, Inc. (1994), courts typically analyze the first factor according to the degree to which the use is "transformative" – that is, "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."
However, Section 106(2) secures to copyright owners the exclusive right to prepare "derivative works" based upon the copyrighted work. According to Section 101:
A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted." A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole represent an original work of authorship, is a "derivative work."
Some insightful commentaries have been published about Andy Warhol Foundation v. Goldsmith, and Free State Foundation scholars likely will address the case more definitively once the Supreme Court has issued its decision. Until then, a general observation here is that the Petitioner's seeming overemphasis on an artist's subjective intent or interpretation of a copyrighted work as rendering a secondary work "transformative" and thus a fair use would, if adopted by the Court, encroach significantly on a copyright owner's exclusive right to prepare derivative works. During the oral arguments, Justice Amy Coney Barrett appeared to make this point – or at least a similar point – when she stated to the Petitioner's counsel: "And it seems to me like your test, this meaning or message test, risks stretching the concept of transformation so broadly that it kind of eviscerates Factor 1 and puts all of the emphasis on Factor 4."
Additionally, I second FSF President Randolph May in commending the Committee for Justice for its amicus curiae brief in this case. As explained in his August 18 blog post, CFJ's amicus brief skillfully sets forth the conceptual underpinnings of copyright law as it pertains to the fair use doctrine. And their brief applies that background understanding to the transformative works claims being made in Andy Warhol v. Goldsmith.
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