Overview
More Supreme Court news following our Copyright Roundup last month! On Monday, the Supreme Court granted certiorari in Andy Warhol Foundation, Inc. v. Goldsmith. The petition by the Andy Warhol Foundation presented the question of whether a work of art is "transformative" for purposes of a fair use defense under the Copyright Act (17 U.S.C. § 107), "when it conveys a different meaning or message from its source material . . . ."
Here, the source material was a photograph of the musician Prince taken by the photographer Lynn Goldsmith that Goldsmith characterized as intended to portray Prince as "a really vulnerable human being . . . ." The pop-artist Andy Warhol used that photograph as the source material for his "Prince Series" of portraits in a manner intended to "strip Prince of that humanity and instead display him as a popular icon." The district court granted summary judgment to the Andy Warhol Foundation ("AWF"), finding the use of Goldsmith's photograph to be fair use.
On appeal, the Second Circuit reversed, holding that a work cannot serve a "transformative purpose and character" for fair use purposes, without "something more than the imposition of another artist's style on the primary work such that the secondary work remains both recognizably deriving from, and retaining the essential elements of, its source material."1
Following the Second Circuit's decision, the Supreme Court decided another fair use case, Google v. Oracle, which held, among other things, that a secondary work's use of portions of a primary work (there, portions of a software interface) can constitute fair use even if the secondary work copied those portions "precisely" and "for the same reason" they were created for in the primary work.2
The Second Circuit reheard AWF v. Goldsmith to consider the impact of Google v. Oracle, but reaffirmed its initial decision, finding that fair use was "highly contextual and fact specific” and that the Supreme Court “took pains to emphasize" that the result of Google v. Oracle may have been limited to functional works like computer code, but less applicable in the realm of traditional creative works.3
This case will be only the fifth time the Supreme Court reviews a question of fair use under the Copyright Act, and the first to be heard after Justice Steven Breyer's expected retirement at the end of this term. But it will be the second time fair use reaches the court in just three years after a 25-year drought since Campbell.4
As is typical, the Supreme Court's order granting certiorari did not reflect its rationale or the vote count. No matter how this case comes out, it is likely to have significant impact across copyright-driven industries. And it could bring greater clarity to the different treatment of copyrights in traditional expressive works versus functional works.
Endnotes
1 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 114 (2d Cir.), opinion withdrawn and superseded on reh'g sub nom. Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021), cert. granted sub nom. Andy Warhol Found., Inc. v. Goldsmith, Lynn, et al., No. 21-869, 2022 WL 892102 (U.S. Mar. 28, 2022).
2 Google LLC v. Oracle Am. Inc., 141 S. Ct. 1183, 1203 (2021).
3 Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 51–52 (2d Cir. 2021), cert. granted sub nom. Andy Warhol Found., Inc. v. Goldsmith, Lynn, et al., No. 21-869, 2022 WL 892102 (U.S. Mar. 28, 2022).
4 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
