We have previously discussed the decision of the U.S. Court of Appeals for the Second Circuit in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021). Reversing the district court, a three-judge panel of the Court held in March 2021 that a series of silkscreen prints and pencil illustrations of singer Prince by Andy Warhol did not constitute a fair use of an image by photographer Lynn Goldsmith. The Court found that the prints did not “transform” the image since they retained “the essential elements of its source material.” Upon rehearing (in light of the Supreme Court’s intervening fair use decision in Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021)), in August, 2021 the Second Circuit confirmed its holding, issuing an amended opinion. 11 F.4th 26 (2nd Cir. 2021).
The Warhol Foundation filed a petition for certiorari with the Supreme Court. The petition was granted on March 28, 2022. Thus the Supreme Court will rule on what constitutes “transformative” fair use. Lutzker & Lutzker will continue to report on this very important case, which, by clarifying the limits of the fair use defense, will have major implications not only for photographers seeking to protect their work but for other creative endeavors as well.