COPYRIGHT-FAIR USE DOCTRINE

Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 2023 U.S. LEXIS 2061 (S. Ct. May 18, 2023) (Sotomayor, J.). This case discusses in great detail the Fair Use Doctrine. In this case, Ms. Goldsmith challenged a Foundation’s effort to use its portrait as a commercial substitute for her own protected photographs in sales to magazines looking for images of Prince to accompany articles about the musician. The only point is that, while the Foundation may have a fair-use defense for Mr. Warhol’s work, that does not mean it always will. Under the law Congress has given us, each challenge must be assessed on its own terms. Lynn Goldsmith’s original works, like those of any other photographer, are entitled to copyright protection, even against famous artists. Such protection includes the right to repair derivative works that transform the original. The use of the copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph into an image licensed to a special edition magazine devoted to Prince, shared substantially the same purpose, and that use is of a commercial value. AWF has offered no other persuasive justification for its unauthorized use of the photograph. Therefore, the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”, Section 107(1) weighs in Goldsmith’s favor.