Andy Warhol Foundation v. Goldsmith Redux

• Jurisdiction: United States,Federal
• Citation: Vol. 47 No. 1
• Publication year: 2022
• Author: Alexandra Darraby
• topic: Intellectual Property,Copyright law,Civil Procedure

ANDY WARHOL FOUNDATION V. GOLDSMITH REDUX

Alexandra Darraby
Art Law Firm

Procedural History of the Warhol Case

For details of the facts and analysis of Andy Warhol Foundation v. Goldsmith, see NEW MATTER (Fall 2021), discussing the district court summary judgment for the Foundation and the reversal and remand by the Second Circuit (Warhol I).¹ Shortly after Warhol I, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., a fair use case involving computer code.² The Warhol Foundation thereafter obtained a rehearing that led to withdrawal of Second Circuit's prior opinion and a superseding opinion (Warhol II).³ In Warhol II, the Second Circuit incorporated Google, upheld its earlier reversal of Warhol I, vacated summary judgment on the infringement counterclaim and remanded. The Warhol Foundation filed a petition for certiorari at the U.S. Supreme Court, docketed December 13, 2021. As a matter of fairness to both parties, in-depth evaluation will wait until a response is filed to the petition for certiorari. Stay tuned and connected!

Below is a brief review, an update on the sequel Warhol II and a prequel to the future of transformative fair use based on Google.

— A. Darraby

Warhol I and II involve challenged fair use of an Andy Warhol depiction of Prince based on a photographic portrait taken by Goldsmith. The suit was initiated by the Foundation for declaratory judgment. The photographer counterclaimed for copyright infringement.

Fair use is the ostensible legal crucible of Google, Warhol I and II. Fair use is not a constitutional term nor is it—or was it—part of statutory copyright law. The common law doctrine was codified in 1976 under Section 107 titled Limitation on Specific Rights—Fair Use.⁴ When the concept of transformation is added to statutory fair use, the aspirational goals of Section 107, particularly for artworks,

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devolve into a discussion like one about how many angels can dance on the head of a pin.

The fair use litany is a well-known judicial mantra: it is fact sensitive and context specific, flexible, without bright-line rules, a judicial weighing together of the four statutory fair use factors within the purposes of copyright law.⁵

Despite the fact that fair use is complicated and elastic in application, particularly in visual arts, it is a legal concept well known to the public. Much of the information consumed by the public as news is provided by media and others reliant on fair use. Section 107's express example of "news reporting" reflects an unofficial ethos of democracy palpable fifty years ago that the free flow of ideas served copyright purposes and limned constitutional values.

Such historic national values were supposedly common ones before the internet, social media, web-based communications, and augmented reality upended the role of the Gutenberg press. Even before the digital environment and metaverse complicated the meaning of "transformative" fair uses, traditional media had to defend its uses of "comment and criticism" and "news." Symbolic bastions of American civil rights like the significant Dream speech authored by Martin Luther King Jr., for example, are copyright-guarded and so far not subject to definitive fair use rulings.⁶

Although transformative fair use on computer code or podcast news may not engender emotional public outcry, whether artwork is transformative is a riveting public issue. Everyone is a critic. Neither the public nor the art world agree about whether a secondary artwork is transforming, to what degree, or along what parameters. Indeed, the greatness of art is elusiveness and transcendence. It is a testament to those qualities that artistic quotation versus legal transformation is the subject of debate, disparate views, emotive responses...