Copyright Fair Use and the Warhol Decision: Navigating the Evolving Landscape, Minimizing Infringement Risks

Description

In a much-anticipated decision concerning the copyright fair use defense as to Andy Warhol’s silk screen image of Prince based on a photograph by prominent photographer Lynn Goldsmith, the Supreme Court’s decision in Andy Warhol Foundation for Visual Arts Inc. v. Goldsmith, (May 18, 2023) adopted a narrow conception of fair use in two respects. The Court framed the relevant use as the commercial licensing of an image of Prince for a publication about Prince – a use that in this instance applied to both Warhol’s work and Goldsmith’s photograph. And while recognizing that Warhol’s work may have added “new expression, meaning, or message,” the Court concluded that, in respect of the specific use in question, this would not establish fair use without a showing that it also had some “critical bearing” on the underlying source material – as does, for example, a parody of an underlying work. The Court held that the combination of these two considerations points against fair use, while emphasizing that its decision did not extend to other potential uses of the Warhol work – such as display in a museum or in an article about Warhol’s artistry.

Though the Court’s resolution of the case was highly fact-specific and therefore arguably limited in impact, it raises concerns for those who create works based on underlying source material; and it makes fair use assessments more complex by requiring a new and detailed analysis for each particular “use” of a work. In a spirited dissent, Justice Kagan, joined by Chief Justice Roberts, warned that the majority’s approach hampers creative progress and undermines creative freedom.

Listen as our authoritative panel of IP attorneys explains the key elements of the Supreme Court’s decision in Warhol and discusses its impact in the fields of licensing and litigation. The panel also will offer insights for best practices and fair use assessments in light of the Court’s three leading copyright fair use decisions: Warhol, Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994) (holding that 2 Live Crew’s parody of Roy Orbison’s song, “Oh, Pretty Woman,” could qualify as fair use); and Google L.L.C. v. Oracle America Inc., 141 S. Ct. 1183 (2021) (holding that Google’s of use of a limited amount of Java code for a mobile phone platform qualified as fair use).