In 1903, the Supreme Court reversed a lower court judgment that a mere circus poster was not a work of “fine art” and therefore unworthy of copyright under the then-current Copyright Act. At that time, the Copyright Act gave copyright protection to certain works called “chromos” that were “connected with the Fine Arts.” Justice Oliver Wendell Holmes, refusing to read this passage to distinguish “works of humble degree” from what might be called “fine art,” said, “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations...” Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903).

Now, fine art and copyright law have once again become the focal points for scrutiny and analysis by our nation’s highest court.

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, decided May 18, 2023, the Supreme Court again refused to give fine art special protection above other art. This time the argument was that a work by Andy Warhol should receive special consideration in applying the doctrine of fair use to immunize it from infringement liability because, among other things, it was “immediately recognizable as a Warhol.” Decision, p. 10. The Court held that the posthumous licensing to a magazine of one of Warhol’s works, consisting of photographer Lynn Goldsmith’s photograph of Prince modified in characteristic Warhol style, was not insulated by the fair use doctrine from copyright infringement liability despite being touched with Warhol’s genius. “[T]he dissent (much like the District Court) treats the first factor as determined by a single fact: “It’s a Warhol.” This Court agrees with the Court of Appeals that such logic would create a kind of privilege that has no basis in copyright law.” Decision, p. 31 n. 19.

Thus it is settled that works of fine art get no better protection from copyright infringement liability than lesser works under the doctrine of fair use.¹ Or do they?

In this article, we examine the intersection of fine art and the doctrine of fair use, including the factors considered in determining fairness and the implications of the Warhol Foundation case, while shedding light on the ongoing debate surrounding the treatment of fine art within copyright law.

The Fair Use Doctrine

The fair use doctrine has been with us since 1841, first in case law² and now by statute. There is a large body of fair use jurisprudence in the Supreme Court, as well as in the lower federal courts. Yet there are few if any fixed rules making it easy to distinguish fair use from infringement.

The 1976 Copyright Act, in §107, codified the fair use doctrine for the first time. Section 107, however, is only a statement of principles and factors to be considered in determining whether a use is “fair,” not a bright-line rule. Fair use decisions routinely comment that fair use turns on the factual details of each case. Fair use opinions usually run through the list of fair use factors in Section 107, considering each factor under the particular facts of the case, before announcing a conclusion.

Warhol Foundation is no exception. The Warhol Foundation decision turns on the very specific facts in the case.

The Warhol Foundation Fair Use Analysis

The opinion in Warhol Foundation makes it clear that the Court was determining only the fairness of one particular use of Warhol’s picture: the licensing of the Warhol picture to a magazine. “The use is AWF’s commercial licensing of Orange Prince to appear on the cover of Condé Nast’s special commemorative edition.” Decision, p. 33.

The Court was emphatic that it was not deciding whether the making of the Warhol picture or any other use of it was a fair use. “[The dissent] ignores the statute’s focus on the specific use alleged to be infringing.” Decision, p. 37. “In particular, the Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works.” Decision, p. 21.

Consequently, Warhol Foundation does not state a broad rule that fine art receives no special treatment under the fair use doctrine. Indeed, the Supreme Court's discussion of another of Warhol's famous works, his Campbells’ Soup can series, indicates just how fine art can indeed receive special treatment under fair use.

A key consideration in fair use analysis has always been the extent to which a work “supersedes” (meaning substitutes for or supplants) a previous work that it copies in the market for the previous work. The Supreme Court’s decision condemning the use made in this case - licensing the Warhol picture to a magazine - turned on the fact that the photographer was also licensing her photographs of Prince to magazines and that therefore licensing Warhol’s copy to a magazine invaded that market. “[T]he first factor [in §107] relates to the problem of substitution — copyright’s bête noire. The use of an original work to achieve a purpose that is the same as, or highly similar to, that of the original work is more likely to substitute for, or“‘supplan[t],’” the work.” Decision, p. 15.

Another key factor in fair use analysis has been the extent to which the previous work was changed or put to a new purpose – called “transformativeness.” Transformativeness is important in determining which side in the litigation is favored in respect of the first numbered statutory fair use factor, “the purpose and character of the use.” 17 U.S.C. §107(1). This is because a transformative use means the creation of something new, which serves the purpose of copyright stated in the Constitution: “[t]o promote the progress of Science and useful Arts.” U.S. Const. Art. I, sec. 8. “Transformativeness” has weighed strongly in favor of accused works under fair use.

Supersession and transformativeness are combined in a balancing test summarized in Warhol Foundation: “In sum, the first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.” Decision, pp. 19-20.

While not the case in Warhol Foundation, in many cases the factors of both supersession and transformativeness will favor fine art in determining whether the fine art is a fair use.. This was illustrated in Warhol Foundation by the Court’s commentary on another series of Warhol works. The decision (p. 26) includes a reproduction of one of Warhol’s famous paintings of a Campbell's Soup can. The Court comments that Warhol's paintings of the soup can labels and the sale of his work in the art market did not supersede  the use that Campbell's was making of its labels. “[T]he Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup. The use therefore does not supersede the objects of the advertising logo.” Decision, p. 27. “[T]he degree of difference in purpose and character between Campbell’s soup label and Warhol’s painting is nearly absolute. ” Id., n. 16. In other words, Warhol made a use of the soup can labels that was so transformative that it did not supersede Campbell’s original purpose in creating the labels.

Conclusion

The Warhol Foundation decision’s finding that the specific use of a fine art work – licensing it to a magazine – was not fair use hinged on its potential to supersede Goldsmith’s magazine market for her photographs. But it is easy to imagine that fine art in its ordinary channels – sale as an original or a limited series of copies or NFTs – will not supersede the markets for the underlying works. Warhol Foundation does not stand for or state a rule that the nature of a work as fine art has no effect in adjudicating a fair use defense. The discussion of the Warhol soup can pictures leads to the opposite conclusion: Fine art is likely to be favored under the doctrine of fair use in the many cases where its market is distinct from the market for the original work and the fine art at issue adds something new to the world.