Fair Use Returns to SCOTUS
What do Andy Warhol, Prince, and Jaws have in common? As of late, a case in front of the US Supreme Court. After battling in lower courts, a fair use case that pits Andy Warhol’s estate against photographer Lynn Goldsmith arrived at the Supreme Court two weeks ago. The ruling will consider the question of how far artistic works are allowed to go when drawing upon prior works. In this case, photographer Lynn Goldsmith sued Andy Warhol’s estate for a 1984 series of paintings that the late artist created based upon a 1981 photo of Prince Goldsmith had taken. An earlier ruling by r a lower court adjudicated that the paintings were not protected by the fair use doctrine, which allows for the unlicensed use of copyrighted work conditional on its meeting of certain factors. The lower court based its decision on the notion that there was not enough transformative use of the photo in the painting and, thus, it violated Goldsmith’s copyright. Warhol’s estate appealed this ruling, and the Supreme Court took up the case in its docket.
This case represents the first fair use in art case to enter the Supreme Court since 1994, and its effects are sure to be plentiful. The factor in question for the Court will be whether the paintings constituted a transformative use of the photo and whether that transformed meaning is even relevant when the Court sees clear derivation. Chief Justice Roberts seemed to make a distinction between the transformed meaning of the photo, which simply captures Prince’s appearance, while the paintings serve as a “commentary on modern society,” implying that the clear difference in purpose could create a fair use exception. Still, the justices considered other adaptions and questioned whether a ruling supporting this transformative meaning exception could harm creators long term; Justice Kagan specifically mentioned that producers of movie adaptions of novels, like Jaws, could take a ruling in favor of the transformative meaning as license to create adaptions without the consent or monetary compensation of the original creator. Justice Kagan questioned whether this type of transformative derivation really achieves copyright law’s ultimate goal of “fostering creativity.”
While this case appears to cover only a single conflict, its implications will be wide reaching considering the vast body of works that exist today as a transformative derivation of existing works. Not only will the creative impacts be broad, but the economic shift could be sizable if producers are able to use art without paying for a license under this type of fair use exemption for ‘transforming the meaning’ of the original work. Creators and lawyers alike will be eager to hear what the Court decides this June.
AUTHORED BY:
Dana Karami
PHOTO CREDITS:
Ian Hutchinson
