Benjamin A. Spencer
The Pop Art style pioneered by artists such as Paolozzi, Lichtenstein, and Rauschenberg challenged notions of what art could be by recasting common objects and images into new contexts, transforming them into pieces that served as both cultural commentary and novel expression. Though examination of an artwork’s meaning or message may seem more natural for a critic or curator, the Supreme Court will have a chance to weigh in with Andy Warhol Foundation for the Visual Arts v. Goldsmith. Here, the court will decide whether a Warhol painting based on a photograph of Prince is protected by fair use.
Under copyright law, creators generally have the right to control and profit from secondary works that derive from their original work. An exception to this is the fair use defense, the four-factor test for which is laid out in 17 U.S.C. § 107. At issue in this case is the first factor—the purpose and character of the use. Central to this factor is the notion of ‘transformativeness,’ and whether the secondary work possesses a new meaning or message that distinguishes it from the original. This interpretation has been affirmed by the Court multiple times and used effectively for many years.
The Second Circuit departed from that precedent, stating that it is impermissible to consider a work’s meaning or message when evaluating whether a work is transformative for fair use purposes. This Commentary argues that the Court should reject the new test proffered by the Second Circuit and affirm the value of considering a work’s meaning or message in conducting a holistic fair use inquiry. This approach would protect copyright holders, while also encouraging artistic innovation and expression.