The Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith has reshaped the understanding of fair use in copyright law, focusing on the purpose and character of the use. This ruling has led to varied interpretations in lower courts, especially in cases involving visual art and media, highlighting ongoing challenges in balancing creative transformation with copyright protections.
Navigating Fair Use: Courts Struggle with Warhol v. Goldsmith Ruling
Under certain conditions, fair use allows people to use copyrighted works without needing permission from the copyright owner. This helps prevent copyright laws from being too strict and limiting creativity. It lets people use and build on existing works without unfairly taking away the original creators' rights to control and profit from their work. To decide if something is fair use, the law looks at four factors:
- The purpose and character of the use, such as if it's for commercial or nonprofit educational purposes.
- The nature of the copyrighted work.
- The amount and importance of the portion used compared to the entire work.
- The effect of the use on the market or value of the original work.
In 1981, Goldsmith took a photo of Prince and later gave Vanity Fair permission to use it as a reference for artwork in 1984. Vanity Fair then hired Andy Warhol to create an artwork based on the photo, which was published in a November 1984 issue. Goldsmith was credited for the original photo.
Warhol created sixteen more artworks based on Goldsmith's photo, but he didn't use or sell them during his lifetime. The Andy Warhol Foundation (AWF) now owns these works. After Prince's death in 2016, Vanity Fair used another Warhol image for a magazine cover without crediting Goldsmith or getting her permission. When Goldsmith found out, she reported the copyright violation to AWF, which then sued her, claiming their use was fair use.
In the case of Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith et al.1 , the district court supported AWF's fair use defense, but the Second Circuit Court of Appeals disagreed. They criticized the district court for assuming that any work adding new meaning to its source is automatically transformative. The Supreme Court reviewed the case but focused only on the first fair use factor, specifically AWF's licensing of the work for a Prince tribute. The Court agreed with the Second Circuit, stating that this factor favoured Goldsmith, not AWF. They rejected AWF's claim that Warhol's works were transformative just because they had a different meaning or message than Goldsmith's photo.
The Supreme Court shifted the focus of the first factor to the specific purpose or character of the use. They noted that the same copying could be fair for one purpose but not for another. Thus, some unauthorized uses might be fair, while others might not be.
Following the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith et al., lower courts have struggled to apply this ruling to various copyright cases. This decision has impacted cases involving visual art, documentaries, and news publications, showing the complexities of fair use analysis.
Jeffrey B. Sedlik v. Katherin von Drachenberg et. al.
In this case, Jeffrey B. Sedlik filed suit against Katherine von Drachenberg because she tattooed an image based on his photograph of Miles Davis. A jury decided that the tattoo was not similar enough to the photograph to be considered an infringement. They did not determine whether the tattoo was fair use. However, they found that Kat von D's social media posts of the tattoo were protected by fair use. Sedlik is appealing this decision2.
Whyte Monkee Productions, LLC. v. Netflix, Inc.3
This case is about the Netflix series "Tiger King" and its use of a video from Joe Exotic's husband's funeral. The lower court ruled in favour of Netflix, but Whyte Monkee Productions argued that a recent Supreme Court decision required a different outcome. The Tenth Circuit agreed and stated that simply adding new elements doesn't automatically make it fair use. They found Netflix's use was commercial and didn't comment enough on the original video. The court sent the case back for more investigation on potential market harm.
Two recent cases involving unauthorized use of photographs on news websites illustrate the varied application of fair use principles.
In Philpot v. Independent Journal Review4, the Fourth Circuit ruled that the Independent Journal Review's use of a photograph of Ted Nugent was not transformative, served the same purpose as the original, was commercial, and potentially harmed the plaintiff’s licensing market. Thus, the court reversed the lower court's finding of fair use.
Conversely, in August Image, LLC v. Girard Entertainment & Media, LLC, the Southern District of New York found the use of a photograph of the Friends cast as significantly different to the use of the original photograph as it reported on an Instagram post by David Schwimmer. The court deemed the use minimally commercial, downplayed the second factor which describes the nature of the copyrighted work and third factor defining the amount and importance of the portion used compared to the entire work. The Court’s decision to follow this approach was because the photograph was used in a way that created a new message or context, and found no significant market harm. This case is currently on appeal to the Second Circuit5.
In conclusion, the Supreme Court’s ruling in Warhol v. Goldsmith has left lower courts working hard to understand and find a solution for its implications on the fair use doctrine. Cases like Sedlik v. von Drachenberg, Whyte Monkee Prods., LLC v. Netflix, and contrasting rulings in news website cases highlight the ongoing challenges and subtle interpretations of fair use in the wake of the Warhol decision. The outcomes of these appeals will likely further shape the landscape of copyright law and fair use analysis.
Conclusion
In conclusion, the Warhol v. Goldsmith ruling has made fair use analysis more nuanced, shifting attention to the specific purpose of the new work rather than simply whether it adds new meaning. As lower courts grapple with applying this standard, cases like Sedlik v. von Drachenberg, Whyte Monkee Prods. v. Netflix, and other copyright disputes continue to test the boundaries of fair use. The outcomes of these cases will further refine how courts handle creative works that build on copyrighted material, shaping the future of copyright law
Image: Andy Warhol's 1984 Prince series Supreme Court of the United States
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1 598 U.S. 508 (2023)
2 Case No. 2:21-cv-01102 (C.D. Cal.), Jan. 26, 2024, Dkt. 252, 254.
3 97 F.4th 699 (10th Cir. 2024)
4 92F.4th 252 (4th Cir. 2024)
5 Case No. 23-cv-1492, 2024 WL 1375480, at *1(S.D.N.Y. April 1, 2024)
