Copyright’s fair use defense – Court clarifies “transformative use” analysis
Abstract: In a colorful copyright case involving iconic artists Prince and Andy Warhol, the U.S. Court of Appeals for the Second Circuit agreed with a photographer’s objection to Warhol’s use of her photo of Prince. According to the court, the fair use defense to copyright infringement wasn’t available because Warhol’s series based on the photographer’s photo retains the essential elements of the photo without significantly adding to or altering them. This article summarizes the case, while a short sidebar highlights the proposal by two judges of the U.S. Court of Appeals for the Second Circuit for a different approach to the fair use analysis. The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420-cv (2d Cir. March 26, 2021).