It seems like we’ve been reporting on this case for years. And it seems like we’ve been reporting on this case for years because we have been.
Those of us who’ve been paying attention know that the case arose when photographer Lynn Goldsmith granted a one-time use license to Vanity Fair magazine allowing pop artist Andy Warhol to create illustrations for an article about rock musician Prince based on a well-known photograph Goldsmith had taken. Unbeknownst to Goldsmith until 2016, shortly after Prince died, Warhol had not only created the illustration used by Vanity Fair in the 1984 article but he also had created a series of fifteen other illustrations based on the same photograph.
The problem was that Goldsmith had never licensed or even authorized such usage. Strictly speaking, this meant that Warhol had infringed Goldsmith’s copyright in the photograph and was likely liable for significant monetary damages.
The Andy Warhol Foundation preempted Goldsmith by filing a lawsuit seeking a determination from the district court that the use was not infringing because Warhol’s art had “transformed” Goldsmith’s photograph. Transformative use of an earlier copyrighted work is one factor in the analysis of whether or not a subsequent work based on an earlier work is protected by the “fair use” doctrine. Thus, if the Foundation were successful in its arguments, then it would be protected from liability to Goldsmith and could not be held liable for copyright infringement or for monetary damages.
Originally filed in April 2017 as Andy Warhol Foundation v. Goldsmith, et al., the case has been winding its way through the U.S. court system in search of a final decision ever since. Then, in March of this year, the U.S Supreme Court announced that it would consider the decision of the U.S. Court of Appeals for the Second Circuit holding that the district trial court had erred in finding that Warhol’s work constituted a “transformative use” of Goldsmith’s work. Transformative use is a key factor in an analysis of the “fair use” doctrine which can be used as a defense to claims of copyright infringement.
Now, with a little luck and a decisive ruling from SCOTUS, we should have an end to the case as well as a decision that will shape the fair use doctrine for years to come.
Why It Matters. What makes this case of interest is the fact that the trial court found in favor of the Foundation while the ensuing appellate court found in favor of Goldsmith. The Second Circuit reasoned that a court seeking to determine the issue of transformative use should view the works “side-by-side” to determine whether the secondary work has a fundamentally different and new artistic purpose and stands apart from the source material.
Of course, few appellate decisions exist in a vacuum and the Second Circuit’s decision must be considered in light of other decisions, including the recent decision interpreting the fair use doctrine in the context of computer software in Google v. Oracle. Artists, publishers, and even tech companies have expressed concern that the Second Circuit’s decision too narrowly interprets the concept and they worry that SCOTUS may further the potential damage to copyright holder rights by entrenching this interpretation and unwinding the recent trend of broadening the definition of transformative use.