Creators of works based on another’s copyrighted work have often relied on a defense to copyright infringement known as fair use. Fair use may apply, for example, when a creator takes the work of an earlier creator and changes it enough in either expression, use, or meaning so that the new work is meaningfully different from the earlier work. That’s called a “transformative” use.  One of the biggest points of contention among courts and lawyers in determining whether fair use applies is whether only adding a new message or creative expression to someone else’s copyrighted work is enough to make it transformative. In a recent decision, the Supreme Court resolved this argument with an emphatic no.

In Andy Warhol Foundation v. Goldsmith, the photographer Lynn Goldsmith accused the late artist Andy Warhol of using her photograph of the musician Prince to create a series of multilayered, multicolored screen prints of a photo of Prince. In defense, the Warhol Foundation (which manages Andy Warhol’s artwork) argued that the screen prints do not infringe Goldsmith’s copyrighted photo because Andy Warhol added new expression to Goldsmith’s photograph. The trial court agreed with the Warhol Foundation, but the intermediate appeals court reversed, finding that Warhol’s works were not protected by fair use. The issue on appeal to the Supreme Court was whether the nature of Warhol’s use of Goldsmith’s photograph to create the screen prints and the underlying reason for Warhol’s use were different enough from Goldsmith’s that Warhol’s works fell under fair use.

The Supreme Court held that Warhol’s works were not insulated from infringement under the fair use doctrine because the work was used for essentially the same purpose as Goldsmith’s photograph, which, in both cases, was to license the photograph (or screen prints) to magazines and journals publishing stories discussing Prince and his music.  Further, Warhol’s use was primarily commercial. The Court cautioned that allowing a person to avoid claims of copyright infringement by adding even a small amount of creative expression risked undermining the very basis of copyright law.

This ruling is important for copyright owners and creators of follow-on works because it makes clear that adding a great deal of originality to a follow-on work will not by itself protect a work as a fair use. In future copyright cases, increased emphasis will be placed on how a follow-on work is being used and whether that work is being used for the same purpose as the original. 

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