What is Fair in Fair Use?

By: Noah Coyle

Edited By: Maayan Abouzaglo and Luke Vredenburg

On October 12, 2022, the Supreme Court heard arguments for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.[1] The case concerns whether a series of artworks based on a photo taken more than four decades ago constitutes a copyright violation, and its outcome may stifle the creation of art that relies on references.[2] The case’s origins date back to 1981, when celebrity photographer Lynn Goldsmith took a photograph of the late musician Prince that she would later license to Vanity Fair in 1984.[3] The magazine was authorized to utilize the photograph for an artist reference, in which an artist derives an artwork from an image of reference; it then commissioned artist Andy Warhol to create a piece of pop art using Goldsmith’s photograph of Prince.[4] The result of the commission was a cropped and recolored version of Goldsmith’s photograph that was featured in a Vanity Fair profile.[5] Warhol then reused Goldsmith’s photograph for a Prince Series that comprised more than a dozen other artworks, which only came to Goldsmith’s attention after one of these artworks was featured in a 2016 Vanity Fair issue commemorating Prince’s death.[6] The copyright of the Prince Series is owned by the Andy Warhol Foundation for the Visual Arts (AWF) nonprofit; Goldsmith received no credit for the Prince Series artwork published in Vanity Fair.[7] In Goldsmith's view, the Prince Series — which utilized her original photograph without her permission — amounted to copyright infringement.

Goldsmith notified AWF of its potential violation of her copyright after she learned of the Prince Series, to which AWF responded by suing Goldsmith in an effort to establish that the Prince Series did not constitute a copyright violation.[8] Goldsmith countersued, and the case was brought to the U.S. District Court for the Southern District of New York, which ruled in favor of AWF in 2019.[9] Precedent set by the Supreme Court in 1994 from the ruling of Campbell v. Acuff-Rose Music, Inc. holds that a derivative artwork which “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message” is not in violation of copyright; this standard is known as the fair use principle.[10] Judge John G. Koeltl, who presided over the case, wrote that the Prince Series is sufficiently transformative to meet the fair use principle, as it changes Prince as depicted in Goldsmith’s photograph “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.”[11][12] The case was appealed to the U.S. Court of Appeals for the Second Circuit, which unanimously reversed Judge Koeltl’s ruling.[13] Writing for the panel, Judge Gerard E. Lynch held that the Prince Series “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements” and therefore constitutes copyright infringement.[14]

The case was then heard by the Supreme Court, which granted a writ of certiorari on March 28, 2022 [15]. AWF claimed that under Supreme Court precedent, the Prince Series meets the fair use principle due to its transformative quality, as the meaning of the artwork is distinct from Goldsmith’s photograph.[16] AWF further argued that a work with a distinct meaning necessarily has a distinct purpose as well, stressing the importance of the fair use principle as a means of protecting art from unfettered copyright laws.[17] Nevertheless, Goldsmith asserted that the Prince Series is not sufficiently transformative to fall under fair use as transformative artworks must have a purpose that is different from the material it is derived from in addition to presenting a new meaning.[18] Goldsmith maintained that the Prince Series lacks any purpose beyond that of her photograph and therefore is not protected under the fair use principle.[19] What is thus in question in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the standard a derivative artwork must meet to be recognized as having a distinct purpose from the original piece.

If the Supreme Court is to side with Goldsmith and limit the fair use principle, an optimist may point to how the ruling would make life easier for lawyers and judges by making fair use – and therefore copyright law as a whole – less ambiguous. A pessimist, on the other hand, may worry that such a ruling for Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith would do to creative freedom what the ruling of Dobbs v. Jackson Women's Health Organization did to federal abortion rights. An illustrative example would be that of hip-hop. Hip-hop is contingent on fair use as hip-hop beats tend to incorporate samples of others’ music. In fact, the ruling of Campbell v. Acuff-Rose Music, Inc. affirmed the right of the hip-hop group 2 Live Crew to sample the Roy Orbison song “Pretty Woman” in one of its own works.[20] If the Supreme Court rules in favor of Goldsmith, sampling could very well become defunct; if a distinct meaning is not enough to signify a distinct purpose, how could one argue that any given song serves a different purpose than another? In addition to hip-hop, this conundrum applies to all other art forms that rely on artistic reference, from the pop art of Andy Warhol to internet memes. With a decision on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith expected in May or June 2023, the parameters of artistic expression in the United States may tighten mere months from now.[21]

NOTES:

1. “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” Oyez (Oyez.org, October 12, 2022), https://www.oyez.org/cases/2022/21-869#:~:text=Facts%20of%20the%20case&text=Warhol%20made%20some%20aesthetic%20changes,fair%20use%20as%20a%20defense.

2. Oyez, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

3. Leslie R. Irwin and Steven D. Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith,” Legal Information Institute (Cornell Law School, October 6, 2022), https://www.law.cornell.edu/supct/cert/21-869.

4. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

5. Adam Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince,” The New York Times (The New York Times, March 28, 2022), https://www.nytimes.com/2022/03/28/us/politics/supreme-court-andy-warhol-prince.html.

6. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

7. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

8. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

9. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

10. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

11. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

12. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

13. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

14. Liptak, “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.”

15. Oyez, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

16. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

17. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

18. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

19. Irwin and Mirsen, “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.”

20. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

21. Hannibal Travis, “The Future of Creative Freedom Is on the Line, Starring Andy Warhol, Prince and 2 Live Crew,” FIU News (Florida International University, October 26, 2022), https://news.fiu.edu/2022/the-future-of-creative-freedom-is-on-the-line,-starring-andy-warhol,-prince-and-2-live-crew.
    

BIBLIOGRAPHY:

“Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” Oyez. Oyez.org, October 12, 2022. https://www.oyez.org/cases/2022/21-869#:~:text=Facts%20of%20the%20case&text=Warhol%20made%20some%20aesthetic%20changes,fair%20use%20as%20a%20defense. 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

Irwin, Leslie R., and Steven D. Mirsen. “Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.” Legal Information Institute. Cornell Law School, October 6, 2022. https://www.law.cornell.edu/supct/cert/21-869. 

Liptak, Adam. “Supreme Court to Hear Copyright Fight Over Andy Warhol's Images of Prince.” The New York Times. The New York Times, March 28, 2022. https://www.nytimes.com/2022/03/28/us/politics/supreme-court-andy-warhol-prince.html

Travis, Hannibal. “The Future of Creative Freedom Is on the Line, Starring Andy Warhol, Prince and 2 Live Crew.” FIU News. Florida International University, October 26, 2022. https://news.fiu.edu/2022/the-future-of-creative-freedom-is-on-the-line,-starring-andy-warhol,-prince-and-2-live-crew.