On March 25, 2022, the Supreme Court agreed to consider whether Andy Warhol’s “Prince Series” sufficiently transforms Lynn Goldsmith’s 1981 photograph of Prince (the “Photograph”) to qualify for the Copyright Act’s fair use defense.

As discussed in detail in our prior blog, at issue in this case is a series of silkscreen prints created by Andy Warhol based on Lynn Goldsmith’s Photograph, in which she holds a registered copyright. In 2017, The Andy Warhol Foundation for the Visual Arts, Inc. (“AWF”) sued Goldsmith for a declaratory judgment that the Prince Series works were non-infringing or, in the alternative, that they made fair use of the Photograph. The district court ruled in favor of the AWF on its assertion of fair use. In 2021, the Second Circuit reversed the district court’s ruling and held that the Prince Series was not transformative (and thus not fair use) because the Photograph “remain[ed] the recognizable foundation upon which the Prince Series is built.” The Second Circuit further explained that “the secondary work’s transformative purpose and character must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work such that the secondary remains both recognizably deriving from, and retaining the essential elements of, its source material.” Continue Reading