Artists Have Cause to Celebrate—Sort Of

In early April of this year, artists won a semi-victory when New York’s Second Circuit found in favor of photographer Lynn Goldsmith against the Andy Warhol Foundation.  The appeals court found that Warhol’s use of a Goldsmith photo of the rock star Prince to create a series of prints was not “fair use.”  That the photographer prevailed in this case is the good news.  The bad news is the basis on which the decision was made.  

In 1984, Vanity Fair licensed a photo of Prince that Goldsmith had taken in 1981, for Vanity Fair to use as an illustrator’s photo reference.  Vanity Fair then hired Warhol to do the illustration.  Warhol did the illustration for Vanity Fair, using the photo as reference, then—unbeknownst to Goldsmith—created a series of fifteen additional prints using Goldsmith’s photo image.  Goldsmith discovered the existence of these additional images in 2016, when Vanity Fair, in the wake of Prince’s death, re-printed the article which carried Warhol’s original illustration, and one of Warhol’s other prints. 

When Goldsmith informed the Warhol Foundation that the prints were infringing works, the Foundation brought suit against Goldsmith, claiming “fair use,” and seeking a declaratory judgment that the prints were not infringing; Goldsmith counterclaimed.  The Foundation won the initial trial, but on appeal the Second Circuit reversed in favor of Goldsmith this April, finding that Warhol’s creation of the additional prints was not “fair use,” on the grounds that the works were not sufficiently “transformative.” 

The original artist won—so it’s a victory, right?  Well, sort of…and only sort of. The photographer won on appeal because the Second Circuit found that the Warhol prints were not sufficiently “transformative” to be covered by fair use. Understand that the concept of “transformative use” appears nowhere in the copyright law itself—it is a judicial invention which the Supreme Court injected into copyright jurisprudence back in 1994, in its decision in Campbell v. Acuff-Rose Music.  

Copyright law lays out four factors to determine fair use: the nature of the original work; the amount of the work taken; the purpose for which it was taken; and the effect on the commercial viability of the original work. “Purpose of the use” includes use for commentary, and parody is included within commentary—but nowhere does the statute cite “transformativeness” as a criterion.  Indeed, for a court to consider “transformativeness” leads the court into the murky realm of aesthetic judgments, rather than the more-or-less objective standards set forth above.  More important, forgiving infringement on the basis of “transformativeness” has the courts trespassing upon the creator’s exclusive right to create, or to license the creation of, derivative works.

In this instance, the court reached the right result—finding for the photographer—for the wrong reasons.  Rather than give further credence to “transformativeness,” the court should have found for the photographer on the grounds that Warhol exceeded the license under which he produced the work, as Vanity Fair had only licensed the work from Goldsmith for use as a picture reference.  The court should have respected the limitations of the license initially granted by the photographer, rather than relying on the non-statutory doctrine of “transformativeness.” this!

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