The Second and Ninth Circuits have consistently led the way in establishing the scope of American copyright law. In the past few years, the Second Circuit in particular has had the difficult task of reconciling copyright law with appropriation art, an artistic style predicated on the intentional use of preexisting images and objects. The user alters the original works to create a new aesthetic experience and/or meaning.
While a popular and respected form of art, appropriation art’s essence – the purposeful use of preexisting works – makes it especially susceptible to claims of copyright infringement. Outside of consent from the original work’s author, the best legal defense for appropriation art is the doctrine of fair use. However, as appropriation artists have experimented with increasingly minimalistic changes to the works they appropriate, this doctrine has proven to be an unreliable shield. Appropriation artists looking to explore the substantial effects that subtle alterations can have on art find themselves at odds with the fair use doctrine’s mandate that unauthorized use of preexisting works be “transformative.” Finding the proper overlap between minimalistic alterations and transformativeness is difficult, but it is a codification that has considerable implications for future appropriation art. Unfortunately, the most recent Second Circuit decision on the matter suggests this overlap is small to nonexistent, impeding the promotion of appropriation art.
Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 19-2420-cv, 2021 U.S. App. LEXIS 25277 (2d Cir. Mar. 26, 2021) resulted from a dispute over a series of silkscreen prints made by Andy Warhol. The prints were based on a photograph taken and copyright protected by Lynn Goldsmith in 1981 of the famous musician Prince. While Goldsmith had licensed the Prince photograph to be used by Andy Warhol for a piece commissioned by Vanity Fair in 1984, the license ended there. Warhol, however, continued to make fifteen additional works based on Goldsmith’s photograph. These additional pieces would only come to Goldsmith’s attention after Prince’s death in 2016. As the successor to the rights of the Prince Series, the Andy Warhol Foundation moved for a declaratory judgment while Goldsmith sued for copyright infringement.
The district court concluded that the Prince Series was transformative and thus fair use, going through the 1976 Copyright Act’s four-step test but relying primarily on the purported change of purpose in the piece: the aesthetic change from a black and white photograph to a colorful silkscreen print transformed Prince from a self-conscious musician to a proud world-renowned rockstar.
The Second Circuit disagreed, arguing that the district court had forgone the proper objective assessment of purpose and character for a ”subjective evaluation of the underlying artist message.” Underlying the circuit court’s ruling is a concern that an evaluative standard would weaken copyright protection by allowing appropriators of preexisting works to throw out any feasible change in purpose as a fair use justification. The circuit court also stated that judges are ill-suited to engage in artistic evaluation. Ultimately the Second Circuit concluded that a proper transformation under fair use occurs when the secondary work displays more than the user’s artistic style imposed on the original author’s work.
While I understand the Second Circuit’s desire for a more consistent transformativeness standard, I am skeptical this ruling will create the clarity the court seeks. Art is an innately subjective form of human expression; the experience and reaction of one spectator to a given artwork will regularly be different from that of another spectator. The Second Circuit even admits as much, dismissing that the purpose of work can be pinpointed based on the intent of the author or the opinion of a critic. So why are we kidding ourselves that there is one objective assessment of art? Labeling an inquiry into something as subjective as the purpose and character of art does not suddenly ensure the inquiry is objective.
The Second Circuit would have better served both doctrinal clarity and the promotion of the arts by leaving in place the transformativeness standard it expressed in its last major appropriation art case, Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013). In that case, the Second Circuit asserted that the critical question of transformativeness is how the work “may reasonably be perceived.” This reasonable observer standard is subjective but restrained: it affords the understanding that there are multiple reasonable interpretations of art while also excluding abuse of fair use with fringe explanations. Had the Second Circuit stuck with this standard, Andy Warhol’s Prince Series and its palpable celebration of Prince as a larger-than-life figure would have been protected under fair use.
The good news for appropriation artists is that the Andy Warhol Foundation case has been appealed to the Supreme Court, with the Warhol Foundation arguing that the Second Circuit’s judgment disregarded the Court’s decision in Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021). For now, however, appropriation artists will likely need to think twice about the magnitude of alterations they are making to original works.