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SCOTUS accepts Warhol’s ‘fair use’ appeal

Updated: Apr 14

The U.S. Supreme Court (“SCOTUS”) has agreed to decide a copyright dispute between a photographer and Andy Warhol's estate over Warhol's 1984 paintings of rock star Prince. The ruling is likely to turn on the Court’s interpretation of the “fair use” doctrine.



As we have previously reported and commented, for several years, photographer Lynn Goldsmith, 74, and the Andy Warhol Foundation have been locked in a legal battle over the artist’s paintings based on the photographer’s images of the late musician and performer.


The Andy Warhol Foundation has appealed a lower court ruling that his paintings - based on a photo of Prince that photographer Lynn Goldsmith shot for Newsweek magazine in 1981 - were not protected by the copyright law doctrine of “fair use.”


Generally speaking, the fair use doctrine permits the unlicensed use of copyright-protected works under certain circumstances.


Warhol’s estate originally filed suit seeking a determination that the paintings were permissible and did not constitute copyright infringement.


In 2017, Goldsmith cross-complained against Warhol's estate for infringement over Warhol's unlicensed paintings of Prince after the estate asked a Manhattan federal court to find that his works did not violate her rights. Warhol, who died in 1987, often based his art on photographs.


Goldsmith alleges that she did not learn about the unlicensed works until after Prince died in 2016 and has asked for an injunction blocking Warhol's estate from making further use of her work and for an unspecified amount of money damages.

Initially, a district court judge ruled that Warhol's works were protected against Goldsmith's infringement claims by the fair use doctrine, finding they transformed Goldsmith's portrayal of Prince as a "vulnerable human being" by depicting him as an "iconic, larger-than-life figure."


But then, the 2nd U.S. Circuit Court of Appeals granted Goldsmith’s appeal and in 2021 found that Warhol's paintings had not made fair use of the photo, allowing Goldsmith's case to proceed. More specifically, the 2nd Circuit held that a transformative work must have a "fundamentally different and new artistic purpose and character," and that Warhol's paintings were "much closer to presenting the same work in a different form."



The Warhol Foundation responded by appealing to the Supreme Court to overturn the 2nd Circuit decision and argued that it created "a cloud of legal uncertainty" for an entire genre of art like Warhol's.


WHY IT MATTERS. Legal pundits widely agree that a ruling in the case could help clarify when and how artists can make use of the work of others.


The fair use doctrine is derived from 17 U.S. Code § 107, part of the Copyright Act of 1976 and can be invoked as a defense of a claim of copyright infringement. It is not a separate right.


A court considering such a defense must four key factors and if the weight of the factors is in favor of the defendant (who is using the plaintiff's copyrighted work without permission), the court may decide that the unauthorized use of the material is permitted and the defendant may continue using the work without paying money damages to the plaintiff. Those four factors are as follows:


1. the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes,

2. the nature of the copyrighted work,

3. the amount 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.


In theory, all four factors are equally important, but in practice courts often focus on the first and fourth factors, considering the nature of the infringement and the effect on the copyright holder's market.


Goldsmith has framed the fight as being bigger than just her photographs and Warhol’s paintings.


"Five years ago, the Foundation sued me to obtain a ruling that it could use my photograph without asking my permission or paying me anything for my work. I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work - and also to decide when, how and even whether to exploit their creative works or license others to do so."


In what may prove to be a preview of its upcoming decision, SCOTUS addressed the issue of fair use in a 2021 ruling finding that the use of Oracle Corp software code by Alphabet Inc's Google in its Android operating system was protected by the doctrine.

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