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Supreme Court to Determine the Breadth of Transformative Use

on Wednesday, 30 November 2022 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

On March 28, 2022, the Supreme Court agreed to review the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, wherein the federal appeals court denied a defense of “fair use,” finding that if an artist utilizes “existing copyrighted expression of other artists” and it results in a work that is “reasonably derived” from the copyrighted expression, they must pay for the right to do so. This interpretation of the “transformative” use test comes in direct opposition to Supreme Court and Ninth Circuit precedent and has the potential to drastically alter how artists create works and how their rights are protected.

The transformative use test was introduced in 1994 by the Supreme Court through its holding in the Cambell v. Acuff-Rose Music, Inc. case. As a new concept, the Court determined the crux of the issue to be “whether [the] new work merely supersedes object of original creation or whether and to what extent it is ‘transformative’ and alters original work with new expression, meaning or message.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The Court when on to discuss how transformative use is not a requirement in determining fair use, rather that the goal of copyright, to promote science and the arts, is often achieved through the creation of transformative works.

Andy Warhol Foundation concerns a series of silkscreen prints and pencil illustrations by Andy Warhol, now represented by the Andy Warhol Foundation (“Warhol”), which were based on a series of copyrighted photographs by Lynn Goldsmith, represented by Lynn Goldsmith, Ltd. (“Goldsmith”). Goldsmith licensed one of the photographs to Vanity Fair magazine for an unknown artist reference. The unknown artist was Andy Warhol, who later went on to create fifteen works in addition to the one for Vanity Fair, later known as the Prince Series. Goldsmith notified Warhol of a presumed infringement on the Goldsmith copyright to which Warhol responded by suing Goldsmith for a declaratory judgment in the United States District Court for the Southern District of New York.

Andy Warhol Foundation provides the Supreme Court with the opportunity to determine the test used to evaluate whether a secondary work has a transformative purpose and lends itself to fair use. With over three dozen amicus briefs filed it is clear that regardless of the conclusion, this case will have a substantial impact on artists and the copyright industry. If the Supreme Court adopts the view of the Second Circuit, original artists will have a greater deal of control over their copyrighted works, but if the Court maintains its position in Campbell artists will have broader freedom to adapt and build on existing works.

Oral arguments were held on October 12, 2022 and the Court’s decision is still outstanding. We will continue to monitor the Andy Warhol Foundation case and provide updates on any significant developments.

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