April 8

Fair Use & Andy Warhol


Andy Warhol’s use of a photograph of Prince “…retains the essential elements of the Goldsmith photograph” without being transformative, at least according to an appellate panel in the Second Circuit. A district court judge’s subjective determination that the Warhol work was transformative was overturned on appeal, because the appellate panel found the work did not add or modify the creative elements of Goldsmith’s image. As seen in the comparison above, the changes to the original photograph did not render the image unrecognizable as being derived from Goldsmith’s photograph. Instead, it merely involved modifying contrast and lighting, while adding Warhol’s distinctive style. Warhol’s creation just recast the same work in his own aesthetic, which did not amount to a transformation of the work.

As is often the case, the appellate panel differed significantly with the lower court’s take on all of the factors considered relevant in its fair use analysis. The 4 guiding factors are the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Any first year law student can attest how the same facts may be applied to the law in different ways to achieve opposite results. The district judge’s subjective determination of the fair use factors gave Warhol a “celebrity-plagiarist privilege”, which the appellate panel rejected. The question of fair use should be a more objective determination based on the 4 factors; however, what makes a copyrighted work original and creative is often more subjective than objective. This means that fair use is often a precarious defense, relying as it often does on an admission of copying. It makes great fodder for feeding hungry litigators, but the cost to the client may well be too great to reasonably rely upon it.

One takeaway is for copyright owners to register unpublished works. A comparatively new group registration allows authors to register up to 10 unregistered works of a similar type for a single fee. Each work gets full protection under copyright law including the right to seek attorneys' fees, statutory damages and a presumption of ownership.

You can get detailed instructions relating to group registration by taking our PROTECT:copyright (registration) training.


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