Overview
The U.S. Supreme Court was expected to decide a case concerning the boundaries of the fair use doctrine under the U.S. Copyright Act, Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021). The case involves photographer Lynn Goldsmith’s 1981 copyrighted photographic portrait of the music icon Prince and Andy Warhol’s silkscreen paintings based on the portrait, which were created without Goldsmith’s permission. The issue in the case is whether Warhol’s paintings are unauthorized infringements of Goldsmith’s copyright or if they are non-infringing fair uses. Specifically, the Supreme Court was asked to consider the extent to which the purported “transformativeness” of a secondary work relative to the copied copyrighted work—e.g., aesthetic transformation or transformation of meaning or message—weighs in favour of fair use.
The Andy Warhol Foundation for Visual Arts argued that Warhol’s works were “‘transformative’ because, while the Goldsmith photograph portrays Prince as ‘not a comfortable person’ and a ‘vulnerable human being,’ [Warhol’s] Prince Series portrays Prince as an ‘iconic, larger-than-life figure[.]’” The U.S. Court of Appeals for the Second Circuit reversed the district court’s ruling in favour of the Foundation, stating: “[W]hether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draws from the work.” The Supreme Court heard oral arguments in October 2022 and was expected to hand down its decision in 2023.
