Good Artists Copy; Great Artists Steal - Supreme Court Seemingly Narrows First Factor of Fair Use In Copyright Suit, Leaving Unanswered Questions For Artists and AI

On May 18, the Supreme Court made a decision regarding the issue of "fair use" in copyright law. The case involved the Andy Warhol Foundation's commercial licensing of a print based on a photograph of the artist Prince taken by Lynn Goldsmith. The Court focused on the first factor of fair use, which considers the purpose and character of the use, including whether it is commercial in nature. The foundation argued that their use was transformative, conveying a different meaning than the photograph. However, the Supreme Court affirmed the decision of the appeals court, stating that the foundation did not alter the purpose and character of the original photograph enough. This decision has sparked discussions about the implications for copyright law, the art industry, and the use of copyrighted material in artificial intelligence. The Court emphasized that fair use should be analyzed on a case-by-case basis. It also noted that this specific opinion only applies to the use of the image in question and does not provide an opinion on other uses of Warhol's Prince series. Additionally, the decision raises questions about the use of copyrighted works in AI-generated content, as courts may consider how AI-produced works are used and whether they supplant the original work or offer commentary or critique.

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On May 18, the Supreme Court addressed a case involving the Andy Warhol Foundation’s commercial licensing of a Warhol print based on a photograph of the artist Prince taken by Lynn Goldsmith. The Court ruled that the first factor of fair use, which examines “the purpose and character of the use, including whether it is of a commercial nature,” was not enough to consider Warhol’s use of Goldsmith’s photograph “transformative” and therefore fair. The Court found that many secondary works add something new, but this newness, by itself, does not automatically qualify such uses as transformative and fair. 

The Court reasoned that fair use requires a contextual analysis of each use and that the purpose and character of the secondary use must be different enough from the original. The Court also distinguished between parodies, which target the author or work for humor or ridicule, and satires, which ridicule society in general. The majority of the Court found that satires may not necessarily be “transformative,” while the dissent did not understand why this should be the deciding factor. 

The decision sparked discussions about the potential implications for copyright law and use of copyrighted material in artificial intelligence. The Court’s opinion highlights the need for a case-by-case analysis of fair use, as it is a flexible concept that can vary depending on the specific context and type of copyrighted material involved. 

Regarding AI-generated content, courts will have to consider the new work’s purpose and character and whether it is being used as a commentary or critique on the original author’s work. The ruling emphasizes that the use of copyrighted works in AI-generated content must take into account how the new work is ultimately used rather than the subjective intent of the coder-“artist.” 

 This ruling may also have implications for the art industry at large, leaving open the possibility that other uses of the same print may be protected by fair use. The same act of copying may be considered fair in one context but not in another. 

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