Which is less reliable, the Supreme Court’s recent decision in the much-watched case of Warhol v. Goldsmith or what reporters and commentators have said about it?
Widely reported as a case alleging that Andy Warhol’s famous series of silkscreen renderings of iconic musician Prince were not fair use of the copyright of the photographer who took the original photo on which the artworks were based, the case was in fact no such thing.
Pretty much all the news media reports, and an embarrassing number of lawyers and legal commentators, maintain that the Court held Warhol’s Prince series to be copyright infringement, leaving in grave doubt the meaning of the Copyright Act’s four Fair Use factors. In fact, however, the Court held that the Andy Warhol Foundation’s licensing of one of Warhol’s 16 “prints of Prince” to Conde Nast for inclusion in a special-edition memorial to Prince was an unfair use of the underlying Goldsmith photograph. The Court was not asked to, and did not, rule that the entire Prince series, or any of the works in the series, is or ever was copyright infringement—though that is the impression one gets from the many headlines and articles reporting and commenting on the decision.
Nor did the Court do much to clarify the long-running controversy over whether the notion of “transformativeness” has swallowed up the statutory Fair Use factors in the nearly 30 years since the Supreme Court held, in Campbell v. Acuff-Rose Music, Inc. (1994), that the first of those factors requires asking whether an alleged infringement of a copyright-protected work transforms and repurposes that work enough to be considered fair use rather than infringement. The Fair Use statute nowhere contains the word “transformative” but courts in subsequent copyright cases fixed on it as an accessible way in which to adjudicate infringement claims—so much so as to trigger concerns that the other three factors, and the actual wording of the first factor, have received diminished consideration.
The Warhol decision is no model of clarity, to be sure, and fumbles about in its efforts to define and illuminate differences between transformative works and transformative uses, changes to the character of a work and changes in the purpose for which the work, or a later variation of it, is used. Transformativeness is still very much with us, and the Court gives no useful analysis on how a single use of a work (such as a commercial license) might become an infringing use of an otherwise non-infringing work. Indeed, the imprecision of the majority opinion generated a dissent from two justices that fueled much of the rhetoric of the published opinion.
As for copyright law and the Fair Use factors post-Warhol? Looks like business as usual.
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