The US Supreme Court recently answered this question.
By Tishkoff PLC
Andy Warhol’s art is in many ways an art of appropriation. He turned commercial imagery into high art. The very act of copying is central to his artistic process and the Pop Art movement. Warhol’s derivative works often blur the line between repetition and reinvention. He paints in vivid colors the vapidity of commercial culture and the dehumanization of commodified celebrity.
However, questions regularly arise for artists such as Andy Warhol as to whether their work violates copyright laws and is not a fair use of another’s work. The recent Supreme Court ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith deals with this question of fair use.
In 1984, the photographer Lynn Goldsmith allowed Andy Warhol, for $400, to use a portrait she took of Prince to create a silkscreen for a Vanity Fair illustration. Warhol, unbeknownst to Goldsmith, used the photograph she had taken to make a whole series of Prince images, one of which, Orange Prince, Condé Nast used for a magazine cover in 2016.
The question before the court was not whether Warhol’s derivative work was sufficiently transformative of Goldsmith’s original photograph. Indeed, Warhol had died decades earlier.
Instead, the court had to focus on the “use” part of “transformative use” and “fair use.” They had to answer whether the Andy Warhol Foundation (AWF) had, in licensing Orange Prince to Condé Nast in 2016, sufficiently transformed the purpose and character of the commercial use of Goldsmith’s photograph that she had originally approved in 1984.
The court’s decision in Warhol Foundation v. Goldsmith carries weight not only for the art world but also for the tech industry, as artificial intelligence generates images and text based on copyright-protected works. Businesses, creatives, and attorneys must navigate this copyright landscape with care.
This blog post explores the ruling’s implications for copyright litigation, intellectual property rights, and the evolving landscape of AI copyright challenges. We will examine key legal concepts, including commercial use, fair use exceptions, the transformative use test, and derivative work copyright, to clarify what this decision means for your business or creative practice.
Please note that this blog post is for general guidance, but is not a substitute for consultation with an appropriate attorney.
Understanding Fair Use: A Foundation for Creative Expression
Fair use is a crucial exception to copyright law that permits the use of copyrighted material without obtaining permission from the copyright holder. Four factors determine fair use:
- Purpose and character of the use: Is it being used for commercial or non-profit purposes? Does the use transform the original work by adding new expression, meaning or purpose?
- Nature of the copyrighted work: Is the work factual or fictional? Factual works are more likely to qualify for fair use than creative works like art or fiction. Is it published or unpublished?
- Amount and substantiality of the portion used: How much of the original work was used? Even if it’s a small portion of the original work, is it the “heart” of the work?
- Effect of the use upon the potential market: Does the use harm the market value for the original work?
Fair use often applies to activities like:
- Criticism and Commentary: Quoting portions of a novel in a book review.
- News Reporting: Showing brief footage from a copyrighted film during a news broadcast.
- Teaching, Scholarship and Research: Using a small excerpt from a textbook in a lecture.
- Research: Including small portions of copyrighted text for analysis in a scientific study.
Warhol Foundation v. Goldsmith is primarily concerned with the first of the fair use factors listed above: the purpose and character of the use. The concept of “transformative use” is pivotal in fair use analysis. Courts look for a use that alters the original work sufficiently to create a different impression or message, serving a new and distinct purpose.
Merely altering or adding to the original work is not enough. For example, a collage of images may not qualify as transformative if it doesn’t imbue the material with a new context or message. However, parody, which critiques the original work, is often considered transformative.
Understanding the transformative use test is critical for creatives and businesses. It underscores the fine line between lawful reuse and copyright infringement.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court addressed some of the nuances of transformative use arguments.
In brief, the story of the case:
- In 1981, photographer Lynn Goldsmith was commissioned by Newsweek to take pictures of Prince.
- In 1984, Vanity Fair secured permission from Goldsmith to modify one of these photographs to use as an illustration in their magazine, paying her $400.
- Vanity Fair then got Andy Warhol to use Goldsmith’s photograph to create a purple silkscreen portrait of Prince for the magazine.
- Andy Warhol independently used Goldsmith’s portrait of Prince to create a series of silkscreen portraits known as the Prince Series.
- After Prince’s death in 2016, Condé Nast licensed an image from the Prince Series, titled “Orange Prince,” from the Andy Warhol Foundation (AWF) for a special edition magazine.
- Goldsmith claimed copyright infringement, prompting AWF to seek a declaratory judgment of noninfringement or fair use. The District Court ruled in favor of AWF, but the Court of Appeals reversed this decision, finding all four fair use factors favored Goldsmith.
- The Supreme Court ultimately upheld the Court of Appeals’ decision, rejecting AWF’s argument that their use was transformative.
The Supreme Court’s analysis of the transformative use doctrine under fair use law is pivotal in this case.
The Court focused on whether AWF’s use of “Orange Prince” had a fundamentally different purpose or character than the use Goldsmith originally intended for her photograph. The Court determined that both uses were substantially the same: both were portraits of Prince used in magazines to illustrate stories about Prince.
The commercial nature of AWF’s use was a significant factor. The Court emphasized that the use by Condé Nast was for a commercial purpose, similar to the commercial use allowed by Goldsmith for the Vanity Fair image, or that intended by Goldsmith in fulfilling her original Newsweek commission. This similarity in purpose and commercial nature weighed against AWF’s fair use defense.
The Court clarified that while adding new expression, meaning, or message to an original work can be transformative, it is not sufficient on its own to justify fair use. It could be argued that Warhol, in creating “Orange Prince,” did sufficiently transform the character of Goldsmith’s photograph. One might say that Warhol was commenting on the emptiness of celebrity portraiture, or the dehumanization of celebrities by their own iconic images. However, the AWF’s posthumous re-use of “Orange Prince” effectively stripped it of its transformative qualities. Thus, “Orange Prince” reverted to being just a commercial copy of Goldsmith’s photograph, making money for yet another magazine. Thus, the Court found that AWF’s use of the photograph did not have a sufficiently distinct purpose or character to claim the fair use exception to Goldsmith’s copyright claim.
The Warhol Foundation v. Goldsmith decision provides clarity on the transformative use test. The Court highlighted that transformative use is a matter of degree. The degree of difference between the original work and the secondary use must be substantial enough to justify the copying. In this case, the Court found that AWF’s use, although adding new expression, did not meet this threshold due to its similar commercial purpose
The decision emphasizes the importance of considering the commercial nature of the use. When the secondary use is commercial and shares the same or highly similar purposes as the original work, the first fair use factor is likely to weigh against fair use. This ruling underscores that commercial copying for purposes substantially the same as those of the originals is generally not justified under fair use exceptions.
The case also addresses the posthumous use of Warhol’s works by the AWF. The Court’s ruling indicates that even if a work is created by a renowned artist, the posthumous commercial exploitation of that work must still adhere to copyright laws and fair use principles. This clarifies that intellectual property rights, including derivative work copyright, remain protected even against famous artists and their estates.
The Court’s ruling in Andy Warhol Foundation v. Goldsmith reinforces the importance of carefully evaluating the purpose and character of a use under fair use law, particularly in cases involving commercial exploitation and derivative works. It serves as a critical precedent in copyright litigation, emphasizing the need to balance intellectual property rights with the principles of fair use and transformative use.
Going forward, creatives and businesses alike will need to be careful with derivative works. Artists and writers selling their creations should always bear in mind the sources from which they created their work.
Businesses will need to exercise caution in licensing derivative works. What Warhol Foundation v. Goldsmith makes clear is that it’s not enough to get permission to use a derivative work from its creator. You will also need to get permission from the creator of the original work from which its creator derived it.
It will be interesting to see if the Warhol Foundation v. Goldsmith decision remains confined to the creative world in years to come, or whether courts apply it to other types of intellectual property. If a silkscreen portrait can be a derivative work, then, perhaps, so too could a proprietary real estate analysis algorithm, or an industrial design.
AI and Copyright
AI-generated art raises complex questions about copyright law. Current intellectual property rights frameworks often require a human author to claim copyright protection. This creates a legal gap for works produced wholly or partially by artificial intelligence.
Fair use law adds another layer of complexity. When an AI system uses copyrighted material as input, questions arise about whether the output constitutes a derivative work or falls under fair use exceptions. For instance, an AI that generates music based on a database of copyrighted songs might inadvertently infringe on derivative work copyright protections.
AI and Transformative Use
The transformative use test is a cornerstone of fair use law. It evaluates whether a new work adds enough new expression, meaning, or purpose to the original. The Supreme Court copyright ruling in Andy Warhol Foundation v. Goldsmith emphasized that mere alteration is insufficient to qualify as transformative. This ruling could significantly impact AI-generated works.
An attorney might one day use Warhol Foundation v. Goldsmith to claim that AI is, like the long-dead Andy Warhol, a silent actor in a copyright case. AI is the agent that transforms the original work into the derivative one, like Warhol transformed Goldsmith’s portrait into silkscreens. The AI, like Warhol, is effectively dead and unsueable.
The human actor who used the AI to create that derivative work becomes like the AWF, licensing out the AI’s work. The question facing the court in an AI copyright case might not be whether the AI’s reinterpretation of the original creator’s work was transformative, but whether a human being’s use of the AI’s product is transformative. In cases where the human being uses the AI’s work for a commercial purpose, the Warhol precedent could become especially relevant.
AI often combines or reinterprets existing works, but does it imbue them with a new purpose or message? Courts may scrutinize AI copyright cases to determine whether the machine’s “creativity” results in a meaningful transformation. However, without clear legislative guidance, the application of transformative use to AI-generated art remains uncertain.
The rapid rise of artificial intelligence copyright issues signals the need for updated legal frameworks. Potential developments could include:
- Legislative Changes: Congress may introduce laws defining authorship for AI-generated works. These laws could establish whether the programmer, user, or AI system itself holds copyright.
- International Harmonization: Global standards for AI copyright may emerge, aligning practices across jurisdictions.
- Judicial Precedents: Courts will likely play a key role in shaping the post-Warhol copyright landscape for AI. Cases involving AI and copyright infringement will set benchmarks for assessing ownership and fair use exceptions.
Businesses and creatives must stay informed about these evolving issues. The intersection of AI, transformative use, and copyright litigation will continue to reshape intellectual property rights in the years ahead.
The Future of Copyright
The Supreme Court copyright ruling in Andy Warhol Foundation v. Goldsmith has reshaped the interpretation of fair use law, transformative use, and derivative works. The decision clarified that mere alteration of a work does not suffice as transformative use, particularly in commercial contexts. It highlighted the need for creators and businesses to carefully navigate copyright litigation risks and intellectual property rights when developing derivative works. For emerging fields like AI copyright, the ruling signals a cautious approach to fair use exceptions and transformative use tests.
Andy Warhol’s art was a bold commentary on copying, consumerism, and commercialism. He would likely have found this case fascinating. Perhaps he would have taken delight in its exploration of appropriation and originality, or perhaps he would have been disappointed to have lost to Goldsmith. Or maybe he would have critiqued his foundation’s handling of “Business Art”— his belief that the business side of art was itself an artistic endeavor, requiring the same care and insight as painting or photography. The court’s decision reflects an attempt to balance protecting copyright holders and fostering creative expression. Ultimately, though, the Court had to decide where to draw the line between transformative art and copyright abuse, whereas Warhol’s disruptive genius thrived in the murky grey area between art and commercialism, transformation and inane repetition.
Navigating copyright issues has never been more complex. Whether you’re an artist, entrepreneur, or business leader, understanding the post-Warhol copyright landscape is essential to protect your work and avoid copyright infringement claims. Seek legal counsel to assess your intellectual property rights, evaluate transformative use, and mitigate legal risks. Contact our firm to discuss your copyright litigation needs or to learn more about how fair use law applies to your creative or commercial endeavors.
Please note that this blog post is for general guidance but is not a substitute for consultation with an appropriate attorney.
For questions regarding business law or litigation, contact Tishkoff PLC.
Tishkoff PLC
407 North Main Street
Ann Arbor, Michigan 48102
www.Tish.Law.
Related materials:
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ___ (2023).
Myers, Gary, “Artificial Intelligence and Transformative Use After Warhol.” Washington & Lee Law Review, 2023.
Park, Kristen, “Nothing Comes from Nothing: Andy Warhol and the Inadequacy of the Fair Use Analysis of Contemporary Art.” Southern California Law Review, 2024.
Samuelson, Pamela, “Did the Solicitor General Hijack the Warhol v. Goldsmith Case?” Columbia Journal of Law and the Arts, 2023.
Spencer, Benjamin A., “It Ain’t Real Funky Unless It’s Got That Pop: Artistic Fair Use After Goldsmith.” Duke Journal of Constitutional Law & Public Policy, 2023.
Tang, Xiyin, “Art After Warhol.” UCLA Law Review, 2024.
United States Code. Title 17, Section 107. Fair Use.
U.S. Copyright Office, “U.S. Copyright Office Fair Use Index.” U.S. Government, 2023.
Warhol, Andy, The Andy Warhol Diaries, ed. by Pat Hackett. Penguin, 2010.
Warhol, Andy, The Philosophy of Andy Warhol (From A to B and Back Again). HarperCollins, 1977.