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Fair Use or Foul Play?

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The Supreme Court’s imminent decision in the Warhol matter will determine whether a series of Andy Warhol prints created from a Lynn Smith photograph of music legend Prince infringes Smith’s copyright.  The Court will either provide valuable guidance, or further confuse the analysis, of fair use under the Copyright Act.

We previously reported on the Warhol case against Prince when the Second Circuit Court of Appeals decided the Warhol prints were not a fair use of the Smith photo.  The Second Circuit held Warhol’s prints did not “transform” the original Smith photograph by conveying a different meaning or message from the original because it is “recognizably derive[d] from the photo. The courts currently split on how to determine whether a work is “transformative” and whether the meaning of a purportedly transformative work should even be considered if the accused infringer slavishly copies the original. Indeed, the Second Circuit overruled a district court ruling that the Warhol prints were transformative because they depicted Prince as “an iconic, larger than life” figure rather than, as shown in the original, a “vulnerable uncomfortable one.”

The Copyright Act sets forth multiple factors for determining whether a work is fair use but does not specifically set forth an exception for “transformative” works—this doctrine was created by the courts. Specifically, the statute sets forth the following factors which must be balanced in determining if a work is fair use or an infringement:

· The purpose and character of the accused infringer’s use;

· The nature of the work being copied;

· The amount and substantiality of the work taken by the accused infringer; and

· The effect of the use on the potential market for the work.

The question for the Warhol Court is whether the “purpose and character” of the Warhol prints overrides the amount of the Smith photograph taken in creating them. Please visit us again when we report on its decision and the scope of its impact on the fair use doctrine.

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