Supreme Court Takes Up Andy Warhol’s “Prince Series” Fair Use Circuit Split

The U.S. Supreme Court agreed final week to evaluate the Second Circuit’s determination that Andy Warhol’s well-known “Prince Series” was not a “transformative” truthful use of the copyrighted Lynn Goldsmith {photograph} that Warhol used as supply materials (see Bracewell’s earlier reporting right here).

The Second Circuit’s determination conflicts with the Ninth Circuit, and is doubtlessly at odds with the Supreme Court’s current ruling in Google v. Oracle, which held that Google made “transformative” truthful use of Oracle’s Java software program language to construct the Android smartphone platform. The Supreme Court upheld the Ninth Circuit’s ruling that the precise copying of laptop code could possibly be transformative if it “alter[ed] the copyrighted work ‘with new expression, meaning or message.’”1 Following Google, the Second Circuit issued a revised opinion within the Prince case that saved its unique ruling and distinguished the Google determination as relevant to the “unusual context” of laptop code.2 The excessive courtroom is predicted to settle the circuit cut up and supply a lot wanted steerage on whether or not the Google ruling applies exterior of the pc programming context.

The controversy arose when the Andy Warhol Basis sued to struggle allegations of copyright infringement from Goldsmith, a photographer who contended that she was not conscious that Warhol had used her 1981 {photograph} of Prince till the music icon’s passing in 2016. A New York district choose dominated that Warhol’s sequence had remodeled Goldsmith’s picture from “a vulnerable human being” into an “iconic, larger-than-life figure.”3 Subsequently, Warhol’s use of Goldsmith’s photograph didn’t represent copyright infringement.

The Second Circuit rejected the district choose’s consideration of the intent and which means behind the work, and located that the Prince Collection was not a “transformative” truthful use of the copyrighted {photograph} as a result of it retained the “essential elements” of the Goldsmith {photograph} with out “significantly adding to or altering” these parts.4


Within the petition for writ of certiorari, the Andy Warhol Basis responded by citing the Ninth Circuit, which has held that even the place a brand new work “makes few physical changes to the original,” it may be transformative if “new expressive content or [a new] message is apparent.”6 The petition urges the courtroom to use earlier transformative truthful use choices to inventive speech7 and resolve the circuit cut up in favor of the Ninth Circuit so as to keep away from “serious harm on artistic expression.”

This case has been adopted intently by copyright holders and authorized practitioners alike, and quite a lot of amicus briefs have been filed urging the Supreme Court to make clear the precise “transformative” truthful use protections afforded to artists beneath the Copyright Act. As inventive expression continues to vary and evolve—from conventional mediums to the rising applied sciences equivalent to NFTs—questions surrounding the scope of copyright safety abound and are growing questions of great financial worth.


  1. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202-04 (2021). Learn the choice here.

  2. Andy Warhol Discovered. for Visible Arts, Inc. v. Goldsmith, 11 F.4th 26, 51-52 (2nd Cir. 2021). Learn the choice here.

  3. Andy Warhol Discovered. for the Visible Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312, 316, 326 (S.D.N.Y. 2019).

  4. Andy Warhol Discovered. for the Visible Arts, Inc. v. Goldsmith, 992 F.3d 99 at 114-115 (2nd Cir. 2021).

  5. Id. at 107.

  6. Seltzer v. Inexperienced Day, Inc., 725 F.3d 1170, 1177 (ninth Cir. 2013).

  7. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) and Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021).

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