Reevaluating the Right to Create: Supreme Court to Redetermine Transformative Use Standard in Warhol Copyright Case

October 10, 2022

This week, the Supreme Court will review a novel matter that could dramatically change the landscape of contemporary art law. The controversy surrounds the applicability of the “transformative use” standard in copyright law, a category of the fair use defense to copyright infringement. If the transformative use standard is overturned by this decision, artists’ freedom of creative expression may be drastically limited and many existing artistic works could be deemed unlawful copyright infringements. 

The dispute in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith began in 2017 when the foundation preemptively sued Lynn Goldsmith, a celebrity photographer who alleged Warhol infringed her copyright on a portrait she had taken of pop icon Prince in 1981. After Goldsmith licensed the portrait to Vanity Fair in 1984, Warhol created his own artistic derivative of the photo by cropping, coloring, and illustrating it. After this work was published in a 1984 Vanity Fair issue, Warhol created fifteen similar renditions of the original photo. When Prince passed away in 2016, Vanity Fair printed one of these illustrations, leading Goldsmith to allege copyright infringement.

Upon trial, Goldstein argued that any reasonable observer could see that Warhol had unlawfully copied her photo without her permission. The Foundation responded by applying the transformative use defense: they argued Warhol’s use of Goldsmith’s photo was fair because, in creating his work, Warhol had applied his own artistic meaning and message to the original photo. The United States District Court for the Southern District of New York held that Warhol’s work was protected under the fair use doctrine, as its nature was transformative due to its added expression and aesthetics. On appeal, however, the Second Circuit reached a contrary decision. They applied the unprecedented rule that, in determining whether a work is infringing, courts should not consider the accused artist’s intention or the implicit meaning of the work at issue; rather, courts should seek to determine whether a work “remains both recognizably deriving from, and retain[s] the essential elements of, its source material.” Referring to this standard, the court held that Warhol’s work was, in fact, infringing. On appeal before the Supreme Court, the Warhol foundation will continue to assert that Warhol’s use of Goldsmith’s photo was fair under the transformative use doctrine, as Warhol’s work created a new message and meaning for the original photo.

The transformative use standard, the center of this controversy, is encapsulated by the fair use doctrine. The fair use defense to copyright infringement permits third parties to use copyrighted works without permission from the author. Further, this doctrine intends to safeguard and promote free expression. The transformative use standard, a subcategory of the fair use defense that was first applied by the Supreme Court in 1994, hinges on whether the new work is “transformative” in that it alters the prior work with new expression; meaning; or message, thereby creating a separate, non-infringing work.

…the transformative use standard propels creative expression and cultural growth through visual arts

If the Second Circuit’s ruling is affirmed in the upcoming Supreme Court case, the transformative use standard could be illegitimized. On one hand, the transformative use standard propels creative expression and cultural growth through visual arts. Simultaneously, as Goldsmith argues, upholding this standard may dilute the fair use doctrine, thus compromising many artists’ exclusive rights to their work. The upcoming case ultimately raises the question of the extent to which artists may create new works by adding their own creative elements to existing art. As many pro-Warhol Foundation amicus briefs have noted, a pro-Goldsmith decision imposes risks upon today’s generation of artists, especially those whose creative output incorporates ingredients from preexisting works. As the creation of derivative artworks by using digital technologies has flourishedin recent years, the Supreme Court’s decision could greatly disrupt this method of creation, thereby impeding the growth of many sectors of the contemporary art realm. Specifically, works featuring the creative re-use of musical samples, components of digital images and videos, and other technological mediums could be deemed unlawful if the Court overturns the transformative use standard. Writing in The Atlantic, media attorney and professor Paul Syznol further explains the range of implications the fair use doctrine has on the realms of technology and media: the doctrine allows us to record broadcast materials; permits filmmakers to incorporate clips from existing materials into new projects; and makes it possible for Google to use thumbnails as results of an online search. Therefore, if the Supreme Court does not reaffirm the transformative use standard, some of contemporary art’s greatest collections, as well as studios; galleries; textbooks; websites; and Instagram accounts could be deemed unlawful, thereby massively reducing artists’ freedom of creative expression.

Allison Cronin

Allison Cronin attended Lehigh University, where she majored in both Psychology and Health, Medicine & Society. During law school, she has been involved in numerous pro bono projects and currently serves as the Pro Bono Coordinator for UNC’s Law Students Against Sexual and Domestic Violence. In her free time, Allison enjoys creating art and weightlifting.