24 Wake Forest J. Bus. & Intell. Prop. L. 21.
On May 18, 2023, the United States Supreme Court entered its opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The Court examined the work of the renowned artist Andy Warhol (Warhol), posthumously represented by his eponymously named foundation, who had incorporated a significant portion of the visual elements from Lynn Goldsmith’s photograph of the deceased rock star Prince without Goldsmith’s permission. In a 7-2 opinion, the Court held that Warhol’s use of the Goldsmith photograph was not “transformative” and thus did not constitute fair use of the photographer’s work. This article will explain and analyze the Court’s decision and its interpretation and application of the copyright fair use transformative test. It will discuss and analyze the transformative test before Warhol and provide guidance to artists, art law practitioners, and professors on the interpretation and application of the transformative test in the post-Warhol context.
II. BACKGROUND ON COPYRIGHT FAIR USE AND THE TRANSFORMATIVE TEST
In 1994, the United States Supreme Court, in Campbell v. Acuff-Rose Music, Inc., first adopted the transformative test for evaluating copyright fair use. The inquiry “focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message.” In the decades after Campbell, the transformative test has become the dominant test of fair use in the United States. The applicability of this test may not encompass all fair use cases, particularly when the content of the copied work remains unchanged. In cases where the test is applicable, a finding of transformative use virtually assures a finding that the use is fair.