Authors Alliance thanks our research assistant, Derek Chipman, for his contributions to this blog post.
Last Monday, the Supreme Court granted certiorari in Warhol Foundation v. Goldsmith, a fair use case involving screen printed images, referred to as the Prince Series, created by the late artist Andy Warhol depicting the late musician Prince. The series is based on a photograph by Lynn Goldsmith, a famed celebrity photographer. Authors Alliance has previously written about the case and its central issue of “transformativeness” last year as part of our update on fair use decisions from 2021. The Supreme Court’s eventual decision could have a large impact on how courts across the country interpret the doctrine of fair use, and consequently, on authors’ ability to rely on this important doctrine. This post is intended to both recap the case and provide context about Supreme Court precedent on fair use and transformativeness to keep our readers informed as the case progresses.
The screen-printed images at issue in the case were created after a first image was commissioned by Vanity Fair based on the photograph by Goldsmith, authorized pursuant to separate agreements between Vanity Fair and Goldsmith and Vanity Fair and Warhol. The authorized Warhol image appeared in the magazine in 1984 and included credit for both Goldsmith and Warhol. However, Warhol went on to create fourteen additional works of the image in the same style, which are the subject of the litigation.
After learning of the additional images after Prince’s death, Goldsmith sued the Warhol Foundation for infringement in New York district court, alleging that the Prince Series infringed her copyright in the photograph of Prince. In its decision, the district court found for the Warhol Foundation on fair use grounds, focusing on the transformative nature of Warhol’s silkscreen prints which the court stated “transformed Prince from a vulnerable, uncomfortable person” as seen in Goldsmith’s photograph “to an iconic larger-than-life-figure” as depicted in Warhol’s series by changing the original image from a black and white, three-dimensional representation into two dimensional, colorful representations.
Goldsmith appealed the district court’s ruling to the Second Circuit, which overturned the district court’s finding of fair use, disagreeing that Warhol’s work was transformative. The Second Circuit believed that the district court improperly took the role of “art critic,” making an artistic determination that Warhol’s works were transformative, rather than comparing the elements of the images and their purposes and characters. Under this approach, the Second Circuit concluded that the work retained “essential elements” of Goldsmith’s photograph and was functionally the same work with a new aesthetic. The Second Circuit’s ruling bore factual similarities to its decision in Rogers v. Koons, where the court decided that a celebrated artist’s colorful image based on a black and white photograph was not fair use.
After the decision was handed down, the Warhol Foundation requested a re-hearing in the Second Circuit, asking the court to consider the impact of Google v. Oracle, a Supreme Court fair use case which was handed down shortly after the original Second Circuit opinion (and which Authors Alliance also covered as part of our fair use in the courts in 2021 update). The Second Circuit granted re-hearing and issued an amended opinion. Unfortunately for the Warhol Foundation, this amended opinion dismissed Google v. Oracle as not applicable to the case at hand, and did not change the essential holding that Warhol’s use of Goldsmith’s photograph was not a fair one.
Then, the Warhol Foundation sought certiorari to the Supreme Court, arguing that the Second Circuit’s ruling had “hollowed out” fair use defenses and would have a chilling effect on artists transforming existing works as well as art galleries displaying works. It further argued that the Second’s Circuit ruling conflicted with a Ninth Circuit standard of transformativeness set forth in Seltzer v. Greenday, which stated that a work can be transformative even if that work “makes few physical changes to the original.” In that case, the Ninth Circuit stated that a work like Warhol’s can be transformative if “new expressive content or [a new message] is apparent.” The Warhol Foundation asked the Supreme Court to hear the issue as it created a different standard of fair use between the two circuits where over half of copyright cases are filed, and hoped the Court would clarify the proper approach and resolve the split. The Warhol Foundation further argued that the Second Circuit’s standard conflicted with the Supreme Court’s own precedent on fair use and transformativeness, particularly Campbell v. Acuff-Rose Music and Google v. Oracle.
The Supreme Court’s precedent under the transformativeness doctrine can be traced to its 1994 decision Campbell v. Acuff-Rose Music, which found that the transformative use of a copyrighted work in sampling a small portion of a song was an important factor in its fair-use analysis. The Court reasoned that if under the first factor, purpose and character, the more transformative the work the less significant the other three factors, thus the less likely it would be found to be infringing. The more recent Google v. Oracle took a broader approach to fair-use than the one recently used by the Second Circuit, where the court found that Google copying a portion of a software code was transformative as it created a new platform offering a “new collection of tasks operating in a distinct and different computing environment.” However, it remains unclear whether this approach would apply to works beyond software interfaces.
Now that the Supreme Court has granted certiorari in Warhol Foundation v. Goldsmith, its ruling could have a large impact on the state of fair use and the transformativeness doctrine. The Court could agree with the broader standard used by the Ninth Circuit or the more restrictive standard of the Second Circuit, it could clarify that its approach in Google applies beyond software, or it could even articulate a different standard that could reshape transformativeness as we know it. Authors Alliance will keep our readers apprised of any updates as this important case moves forward.