Work is “transformative”

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Fair Use
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Argued: October 12, 2022
https://www.oyez.org/cases/2022/21-869
https://www.scotusblog.com/case-files/cases/andy-warhol-foundation-for-the-visual-arts-inc-v-goldsmith/
Facts of the case
Artist Andy Warhol created a series of silkscreen prints and pencil illustrations (“Prince Series”) based on a copyrighted 1981 photograph of the musician
Prince, taken by Lynn Goldsmith. Warhol made some aesthetic changes to Goldsmith’s original photograph, but they remained “recognizably derived” from
the original.
Goldsmith sued the Andy Warhol Foundation, successor to Warhol’s copyright in the Prince Series, for copyright infringement. The Foundation raised fair use
as a defense. The district court granted summary judgment for the Foundation, concluding that Warhol had “transformed” the original photograph by giving it
a new “meaning and message.” The U.S. Court of Appeals for the Second Circuit, holding that because the Prince Series remained “recognizably derived”
from the original, it failed to transform and was thus not fair use.
Question 2
What is the proper test for whether a work is “transformative” under the first factor of the Copyright Act’s fair use doctrine?
An article about the case: https://www.scotusblog.com/2022/10/the-court-of-art-criticism-is-in-session/

Sample Solution

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict. The Transformative Factor: The Purpose and Character of Your Use. In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions: has the material you have taken from the original work been transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

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