(L-R)Andrew Costa(L) and Nicole D. Galli(R) of ND Galli Law. Courtesy photos Introduction
Many (including us) were waiting with bated breath for the U.S. Supreme Court's opinion deciding whether Andy Warhol Foundation's (AWF) licensing of Warhol's iconic "Orange Prince" was a fair use of Lynn Goldsmith's source photo (spoiler alert—it was not). Many (including us) had expected the court to use this opportunity to clarify the transformative fair use defense to copyright infringement under 17 U.S.C. Section 107—or, in other words, clarify the degree of "new expression, meaning or message" necessary for an unauthorized use of a copyrighted work to qualify as fair use. Certainly the disagreement between the lower and appellate court opinions made it seem likely that the Supreme Court would attempt to reconcile these competing analyses into a more coherent rule.'Andy Warhol Foundation v. Goldsmith': A Myopic View of Fair 'Use'
We summarize key elements of the majority's reasoning, highlighting some of the analytical conundrums and open questions it leaves behind.
June 14, 2023 at 11:21 AM
10 minute read
Intellectual Property
(L-R)Andrew Costa(L) and Nicole D. Galli(R) of ND Galli Law. Courtesy photos
Introduction
Many (including us) were waiting with bated breath for the U.S. Supreme Court's opinion deciding whether Andy Warhol Foundation's (AWF) licensing of Warhol's iconic "Orange Prince" was a fair use of Lynn Goldsmith's source photo (spoiler alert—it was not). Many (including us) had expected the court to use this opportunity to clarify the transformative fair use defense to copyright infringement under 17 U.S.C. Section 107—or, in other words, clarify the degree of "new expression, meaning or message" necessary for an unauthorized use of a copyrighted work to qualify as fair use. Certainly the disagreement between the lower and appellate court opinions made it seem likely that the Supreme Court would attempt to reconcile these competing analyses into a more coherent rule.
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