In its “Warhol/Prince” opinion issued on May 18, the U.S. Supreme Court has clarified that copyright protection, at least for pictorial, graphic, and sculptural works (specifically photographs), includes the exclusive right of the copyright owner to prepare and to authorize the preparation of derivative works that transform the owner’s original copyrighted work.

The Court has further clarified that the first of four statutory factors that determine whether an accused work is protected “fair use” focuses on whether the specific use of the accused work has a further purpose or a different character, which is a matter of degree, that is sufficiently distinct from the use of the copyrighted work. Although new expression (transformative expression) in the accused work may be relevant to whether the accused work has a sufficiently distinct purpose or character, transformative expression alone is not dispositive of the first of the four statutory fair use factors. Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith, No. 21-869 (Slip Opinion, May 18, 2023).  The defense of “Fair Use” may require the analysis by an experienced copyright attorney of complex issues.