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By: Patrick Eckler
The Supreme Court of the United States has granted certiorari in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., on the following question: Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the Second Circuit has held). This case will give the court the opportunity to interpret the fair use doctrine under the Copyright Act and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) as well as Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202 (2021). The Second Circuit in its decision in the case created a circuit split regarding the fair use doctrine. The petitioners claimed the proper rule for determining fair use is whether a creative work that derives from another work conveys a different meaning than the original work. In contrast, the Second Circuit forbids such an analysis were there is a visual resemblance between the two works. At issue is the legality of a series of photographic portraits of the musician Prince by the visual artist Andy Warhol. The district court concluded that the Warhol work was transformative because it gave new meaning and message distinct from the original pictures. In overruling the district court, the circuit court conceded that the Warhol work “give[s] a different impression” than the original, but was nonetheless a violation of copyright law because they “remain[ed] the recognizable foundation upon which the Prince Series is built.” The circuit split is created because in the words of the petition “the Ninth Circuit has held that ‘even where’ a new ‘work makes few physical changes to the original,’ it can be transformative if ‘new expressive content or [a new] message is apparent.’ Seltzer v. Green Day, Inc., 725 F.3d 1170, 1177 (9th Cir. 2013) (emphasis added).” Given the volume of copyright and fair use cases brought in the Second and Ninth Circuits this is an important case. It should be expected that the case will be argued in the fall of 2022.