For thousands of years, works like this were considered “great art.” At some point in the twentieth century, however, we were told that “great art” now included works such as this. And this. And even this. They called it “Pop Art,” and Andy Warhol (d. 1987) was the most famous pop artist of the twentieth century.
Back in 1981, another type of artist, celebrity photographer Lynn Goldsmith, took photos of then-emerging musician Prince. Unbeknownst to her, in 1984 her agency gave a limited license to Vanity Fair to have an artist do a treatment of one of these photos. That artist turned out to be Warhol, who made his artistic augmentations to her photo, which was then exhibited in the November 1984 issue of the magazine, in accordance with the license terms.
In 2016, the year of Prince’s death, Goldsmith discovered that Warhol had actually produced fifteen additional copies of the Prince photo. These copies all clearly featured her photo, albeit with Warhol’s own artistic alterations of color, medium, or the addition of colored shapes. Viewing these copies as outside the scope of the Vanity Fair license, she notified the late Warhol’s Foundation of her perceived copyright infringement. The Foundation promptly sued her for declaratory relief, obtaining summary judgment on the issue of “fair use” – a codified doctrine that insulates from infringement liability certain limited uses of copyrighted works, deeming such uses beneficial to the arts and society. The Second Circuit reversed, however, concluding that Warhol’s works were not only not fair use as a matter of law, but were also substantially similar to Goldsmith’s photo as a matter of law– seriously teeing up her claim of infringement.
The court focused on the first prong of the fair use inquiry: Whether the accused work is “transformative” of the original. The district court had concluded that Goldsmith’s photo portrayed Prince as a “vulnerable, uncomfortable person” while Warhol’s treatment portrayed Prince as “an iconic, larger-than-life figure.” As such, Warhol’s work was sufficiently transformative.
The Second Circuit, however, invalidated this entire approach, holding that “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue … because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.” “Instead, the judge must examine whether the secondary work’s use of its source material is in service of a ‘fundamentally different and new’ artistic purpose and character, such that the secondary work stands apart from the ‘raw material’ used to create it.” Thus, to be transformative, the accused work must, at “bare minimum, comprise 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.” Warhol’s copies failed this test. As indicated, they share the same purpose (i.e., portraiture) as the original, and were merely Warhol’s style overlaid upon Goldsmith’s work.
The Foundation’s cert petition casts the decision as creating a circuit split justifying Supreme Court intervention, stating the question presented as “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the Second Circuit has held).” The High Court granted the petition on March 8, 2022.