Appropriation Art on Trial: Oral Arguments before the Supreme Court in Warhol v. Goldsmith

By Jana S. Farmer, Leia Leitner and Meenka Maharaj

On October 13, 2022, the U.S. Supreme Court heard arguments in the matter of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, et al. on the issue of whether Warhol’s silkscreen prints of iconic musician Prince based on an underlying photograph taken by Lynn Goldsmith in 1981, constituted “fair use” because the prints imbued the original artwork with a new meaning and message.

The fair use doctrine allows the use of a copyrighted work without permission from the copyright holder in limited circumstances. The four factors of the “fair use” test are set forth in section 107 of the Copyright Act:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. The effect of the use on the potential market for or value of the copyrighted work.
   See 17 U.S.C. § 107.