The copyright battle over Andy’s Warhol’s “Prince Series” has made its way up to the Supreme Court. This week, the Andy Warhol Foundation petitioned the Supreme Court to hear its appeal of the Second Circuit’s ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021), which held that Warhol’s “Prince Series” infringed on Goldsmith’s portrait of Prince and was not fair use. (See our prior posts explaining the Second's Circuit's decision here and here.)
The Warhol Foundation argues that the Second Circuit’s decision “threatens a sea-change in the law of copyright” because it fundamentally alters the “transformative inquiry”, which, in practice, is “virtually always dispositive of the fair use question.” According to the Warhol Foundation, the heart of the transformative inquiry—under the Supreme Court’s landmark Campbell decision—has always been whether the work “adds something new” by “altering [the source material] with new expression, meaning, or message.” The Warhol Foundation argues that the Second Circuit’s decision fundamentally alters this test by prohibiting courts from ascertaining whether the follow-on work conveys a different meaning or message from the original, where both pieces are works of art that share a visual resemblance.
Specifically, the Second Circuit held that Warhol’s Prince Series did not make a transformative use of Goldsmith’s portrait because it “retain[ed] the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements” and Goldsmith’s photo “remains the recognizable foundation upon which the Prince Series is built.” The imposition of Warhol’s “signature style” on Goldsmith’s portrait was insufficient as a matter of law. According to the Warhol Foundation, this decision adopts a new test for “transformativeness”—which conflicts with the Ninth Circuit and Supreme Court precedent—that turns on the visual and aesthetic differences between two works, not their different message or meaning.
The Supreme Court is under no obligation to hear the appeal; four of the nine Justices must vote to accept the case. The Andy Warhol Foundation urges the Supreme Court to hear the case because the Second Circuit’s ruling “creates a circuit split and casts a cloud of legal uncertainty over an entire genre of visual art, including canonical works by Andy Warhol and countless other artists.” The Supreme Court’s recent decision in Google v. Oracle took an arguably broader view of the transformative test in the software context—finding that Google’s copying of 11,500 lines of Oracle’s code was “transformative” (and fair use) because Google used the code to create a new product. If the Court decides to hear this appeal, it will be interesting to see how it clarifies the standard for transformativeness in the context of artistic works. Stay tuned!