WARHOL: Creator or Infringer?
March 21, 2023
By: Brian T. Moriarty, Joshua S. Matloff, and Kristen K. Salvaggio
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U.S. Supreme Court Set to Rule on Artists’ “Fair Use” Defense to Copyright Infringement
Does an artist have unlimited rights to take another’s work without compensation or permission as the basis for new art? The Supreme Court is about to answer this question in the controversial Warhol case.
Andy Warhol, like other well-known “appropriation artists,” was famous for taking the copyrighted work of others and transforming it with a new purpose or character – e.g., the Campbell’s Soup Can art. Warhol (like other artists) in response to a copyright claim, would assert that he created a “transformative” art work and, thus, under the doctrine of “fair use” was allowed to disregard the original author’s copyright.
A “transformative” work is a second work that “adds something new, with a further purpose or different character” to the first work or alters the first work with new expression, meaning, or message. This test, while simply stated, has proved to require complex and nuanced analysis by the courts.
Test your ability to discern if a second work is “transformative” of an original or not with this short QUIZ. (Case notes at end)