Where Creativity and Copyright Collide: AWF v. Goldsmith and the Fight Over Fair Use

On October 12, 2022, the Supreme Court heard oral arguments in Andy Warhol Foundation for the Visual Arts, Inc. (AWF) v. Goldsmith, a case that could become the most consequential copyright infringement dispute in decades. Goldsmith owes its significance to its focus on the (admittedly elusive) standard of artistic “transformativity,”  which has so far led the court to consider the transformative qualities of art ranging from Mork and Mindy to the Mona Lisa, Lord of the Rings, and, somehow, Syracuse University football games. It is the first non-digital fair use case the Court has heard in nearly 30 years and concerns a series of 16 Andy Warhol portraits of the late musical icon Prince, the inspiration for which came from a 1984 headshot by music photographer Lynn Goldsmith. Goldsmith alleges that Warhol, in creating art that existed outside of a prior licensing deal she had with the magazine Vanity Fair, violated the copyright of her work. AWF, who currently owns the rights to Warhol’s work, argues instead that the transformative nature of the paintings qualify them as fair use.

Oral arguments have demonstrated that the ultimate question the Court will have to reckon with is just how “transformative” a work must be to receive fair use protection. Though seemingly overshadowed by other more politically polarizing cases on the docket, the ruling in Goldsmith will have significant implications for content creation in almost every medium, from the hallowed halls of fine arts to cyberspace and beyond. It is critical that the Court, especially as it explores the most ambiguous qualities of art, carefully considers the rippling ramifications of its decision on creativity in this country — even if that means abandoning its old intuition in favor of a more lenient approach to fair use as a whole. 

While litigation for Goldsmith is a rather recent development, the case’s history began with a decades-old $400 licensing deal Goldsmith made with Vanity Fair for a headshot of Prince. Unbeknownst to Goldsmith, the magazine gave her photograph to Andy Warhol, a titan of modern art, so that he could create a portrait to accompany a profile of the pop star in his prime. Years later, when Prince tragically died in 2016, the magazine contacted AWF to confirm that they still had the 1984 image, and after finding out that Warhol had painted 15 other variations of the original, immediately obtained a three-month exclusive commercial license on the series for upwards of $10,000. The “Prince Series” was then incorporated into the retrospective without any credit given to Goldsmith for her reference photograph. 

Upon learning of the alleged infringement, Goldsmith notified AWF, who retaliated by proactively filing for a declaratory judgment of noninfringement in the Southern District of New York. After Goldsmith countersued, the district court provided summary judgment in favor of AWF, explicitly citing the four-factor fair use test – a statutory exception from copyright meant to encourage “transformative” creative works – as the basis for its decision. The court reasoned that “[the paintings] can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” On appeal, the Second Circuit Court sided with Goldsmith, asserting instead that the transformative nature of art “cannot turn merely on the perceived or stated intent of the artist or the impression that a critic – or for that matter, a judge – draws from the work.” The first factor of fair use requires one to consider “the purpose and character of the use,” and because the circuit court could not find an objective indication of a transformation in either aspect of Warhol’s series, it could not rule in his estate’s favor. In any case, from a strictly jurisprudential perspective, it may be unwise to empower a judge to the extent that they become the arbiter of artistic interpretation. 

Within the context of fair use precedent, the conclusion to be made in Goldsmith seems rather cut-and-dry. The  Second Circuit Court’s decision in Cariou v. Prince (2011), for instance, was favorable to the secondary works, all of which were much more transformative than Warhol’s. However, its logic in Cariou specifically relies on the notion that “the secondary work’s transformative purpose and character must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work.” Because the central artistic alteration in the Prince Series is that of an imposition of the notorious “Warhol style” on Goldsmith’s photographs, the circuit court could not be reasonably expected to endorse AWF’s fair use claim on the basis of its own analysis. The Supreme Court also found in Campbell v. Acuff-Rose Music, Inc. (1994) that the function of the first factor of fair use is to determine if the secondary work “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” On its face, Warhol’s paintings lack a discrete transformative element that indicates any distinction in meaning from Goldsmith’s headshots, so that character change must be left to the personal inclinations of the viewer. This means that if the district court’s logic were applied evenly, most derivative media could be considered transformative on the lonely merits of a judge’s subjective interpretation of the art; without an objective standard for fair use, the exception becomes the rule. So, in a purely statutory sense, Goldsmith wins. 

Notwithstanding the statutory consistency of the Second Circuit’s judgment, the societal implications of a Goldsmith ruling may be detrimental to the object of the law itself. Both copyright and its exceptions were created with the purpose of preserving the nation’s creative spirit. Without just compensation for artists whose work is used in other media, little incentive exists for those artists to continue their work. Yet, without exceptions to prevent the overbearing ownership of an abusive artist, unfettered copyright might have a chilling effect on creativity at large. In order to effectively balance the intended functions of these facets of copyright law, the Court must adopt a more lenient approach to fair use in this case. 

By affording AWF victory in these proceedings, the Court would account for that quality of art that the law simply cannot find the words to regulate: creativity itself. At the core of the legal problem, in this case, is the question of whether or not something is sufficiently creative enough to be considered truly transformative, and the perceived significance of a single alteration to a work can differ massively between people and expressive mediums. This is exactly why oral arguments have yielded discussion about such wildly different forms of media; the potential for copyright infringement could theoretically span from television spin-offs like Mork and Mindy to simple demonstrations at local college football games. What might be a transgressively minor change to a copyright owner might shift the entire meaning of a work to the artist or a lay audience – perhaps even a judge. It is for this reason that further empowering copyright owners with a ruling for Goldsmith poses a threat to the very thing these laws were meant to protect. In that case, Andy Warhol’s entire career of celebrity portraiture is put under scrutiny. On the internet, where copyright abuse is notoriously flagrant, video essayists and digital commentators may have their livelihoods threatened by the owners of the works they criticize. The stakes are unknowably high, but something that the Court can be certain of is that it is impossible to effectively regulate something as irregular as the creative soul of a nation. 

Edited by: Matthew Oey