Second Circuit Redefines the Concept of “Transformative” Fair Use under Copyright Law

The U.S. Court of Appeals for the Second Circuit has held that a series of Andy Warhol prints were not a “transformative” fair use of a photographer’s picture of the musical artist Prince and thus infringed the photographer’s copyright.

The case is The Andy Warhol Foundation v. Goldsmith.

The photographer, Lynn Goldsmith took photos of Prince in 1981, early in his career. In 1984, she licensed the photos to Vanity Fair magazine as reference art for an illustration for an article about Prince.

Goldsmith didn’t know at the time that the artist creating the illustrations for Vanity Fair was pop artist Andy Warhol.

After Prince died in 2016, Goldsmith learned that Warhol (who had also since died) had used her photo of Prince – without her permission -- to create a series of fifteen silkscreen prints (the “Prince Series”). She notified the Andy Warhol Foundation for the Visual Arts, Inc. ("AWF"), successor to Warhol's copyright in the Prince Series, that she believed the series violated her copyright in the photo.

The parties subsequently engaged in litigation, and the AWF won at the district court level. The lower court found that the prints were “transformative” and thus fair use under copyright law.

The lower court concluded that the Prince Series was “transformative,” because “while the Goldsmith Photograph portrays Prince as ‘not a comfortable person’ and a ‘vulnerable human being,’ the Prince Series portrays Prince as an ‘iconic, larger-than-life figure.’”

Courts consider four main factors in determining whether the unlicensed use of a copyrighted work is “fair use”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The first factor focuses on whether a use is “transformative”:

whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message….

Paradigmatic examples of transformative uses are those Congress itself enumerated in the preamble to § 107: "criticism, comment, news reporting, teaching . . ., scholarship, or research." And, as the Supreme Court recognized … parody, which "needs to mimic an original to make its point."

The court of appeals concluded that

Though it may well have been Goldsmith's subjective intent to portray Prince as a "vulnerable human being" and Warhol's to strip Prince of that humanity and instead display him as a popular icon, whether 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.

Thus, found the court, the Prince Series was not transformative and thus violated the copyright in the original photo.

The art critics of the New York Times disagreed with the decision, saying

But, in fact, to do truly original artistic work, the reuse often needs to stay very close to its source. Many great modern artists not only don’t “draw from numerous sources” in copying from others, they don’t make any kind of aesthetic change at all to the single image they are copying from.