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The Copyright Clash Between Artists: A Quiz

April 14, 2022

By: Brian T. Moriarty


               Photo: Lynn Goldsmith   vs.  Graphic: Andy Warhol

U.S. Supreme Court to Review the Controversial Warhol “Fair Use” Copyright Case

“Appropriation Artists,” such as Warhol and Koons, often take an image made by another visual artist, usually a professional photographer, without permission, and incorporate it into a new work of art that purports to make a sweeping commentary about society.  These artists are controversial and attention-seeking, and they can often turn a photo worth thousands of dollars into a work of art worth millions.  Appropriation Artists have been subject to many lawsuits by original artists seeking to enforce their copyrights.  Like the art itself, these cases generate a lot of interest and controversy.  Briefly, if the Appropriation Artist merely “recasts” or “transforms” the original art into something similar to the original work, the taking of another’s art is a violation of copyright law.  But, if the Appropriation Artist’s work is “transformative,” the taking of another’s art without permission, attribution or compensation is permissible under the legal copyright doctrine of Fair Use.  If the new work “adds something new, with a further purpose or different character” or alters the first with new expression, meaning, or message, the new work is considered transformative and, therefore, can potentially be considered fair use.

The two leading copyright cases addressing these clashes are from the Second Circuit:  Cariou (2013) and Warhol Foundation (2021).

Cariou involved a clash between artist Richard Prince and photographer Patrick Cariou over Richard Prince’s appropriation of Cariou’s images of Rastafarian culture.  The Cariou court ruling took an expansive view of fair use.  Warhol Foundation involved a clash arising from artist Andy Warhol’s appropriation of photographer Lynn Goldsmith’s image of the musician Prince, shown above.   The Warhol Foundation court viewed the Cariou decision as going too far in its rationale.

On March 28, 2022, the U.S. Supreme Court agreed to review Warhol Foundation. The case will resolve the tension between the Cariou and Warhol Foundation decisions and determine how copyright law applies to the clash between artists.  The case will be closely watched and will likely be the most important copyright case in a generation.

Test your ability to discern “transformative” works from impermissibly appropriated works with the following interactive and educational QUIZ.