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Following the United States Supreme Court's decision in Campbell, the courts' assessment of the first fair use factor has focused chiefly on the degree to which the use is transformative, i.e., whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. Courts evaluate whether a work is transformative by examining how it may reasonably be perceived. Paradigmatic examples of transformative uses are those Congress itself enumerated in the preamble to 17 U.S.C.S. § 107: criticism, comment, news reporting, teaching, scholarship, or research. And, parody, which needs to mimic an original to make its point, is routinely held transformative. These examples are easily understood: the book review excerpting a passage of a novel in order to comment upon it serves a manifestly different purpose from the novel itself. Copying from an original for the purpose of criticism or commentary on the original tends most clearly to satisfy Campbell's notion of the transformative purpose involved in the analysis of factor one.
This case concerns a series of silkscreen prints and pencil illustrations created by the visual artist Andy Warhol based on a 1981 photograph of the musical artist Prince that was taken by Defendant-Appellant Lynn Goldsmith in her studio, and in which she holds copyright. In 1984, Goldsmith's agency, Defendant-Appellant Lynn Goldsmith, Ltd. ("LGL"), then known as Lynn Goldsmith, Inc., licensed the photograph to Vanity Fair magazine for use as an artist reference. Unbeknownst to Goldsmith, that artist was Warhol. Also unbeknownst to Goldsmith (and remaining unknown to her until 2016), Warhol did not stop with the image that Vanity Fair had commissioned him to create, but created an additional fifteen works, which together became known as the Prince Series. Goldsmith first became aware of the Prince Series after Prince's death in 2016. Soon thereafter, she notified Plaintiff-Appellee The Andy Warhol Foundation for the Visual Arts, Inc. ("AWF"), successor to Warhol's copyright in the Prince Series, of the perceived violation of her copyright in the photo. In 2017, AWF sued Goldsmith and LGL for a declaratory judgment that the Prince Series works were non-infringing or, in the alternative, that they made fair use of Goldsmith's photograph. Goldsmith and LGL countersued for infringement. The United States District Court for the Southern District of New York granted summary judgment to AWF on its assertion of fair use and dismissed Goldsmith and LGL's counterclaim with prejudice. Goldsmith and LGL contended that the district court erred in its assessment and application of the four fair-use factors. In particular, they argued that the district court's conclusion that the Prince Series works are transformative was grounded in a subjective evaluation of the underlying artistic message of the works rather than an objective assessment of their purpose and character.
Was an artist's use of a photograph of a singer as the basis for a series of artwork protected as fair use under the Copyright Act, 17 U.S.C.S. § 107?
The court held that an artist's use of a photograph of a singer as the basis for a series of artwork was not protected as fair use under the Copyright Act, 17 U.S.C.S. § 107, because the fair use factors weighed strongly in favor of the photographer, as the series was not transformative because it retained the essential elements of the photograph without significantly adding to or altering those elements. The photograph was both creative and unpublished. The series borrowed significantly from the photograph, both quantitatively and qualitatively, and although the primary market for the photograph and the series might differ, the artwork in the series posed cognizable harm to the photographer's market to license the photograph. Given the degree to which the photograph remained recognizable within the series, the works were substantially similar as a matter of law.