By: Nicole Maxwell
The rise of social media and technology is causing creators — and judges — to examine old-standing copyright laws more closely. Although Congress has not amended the Copyright Act since 1976, courts are enforcing the exact language of the statute even more than before.[1]
In May 2023, the Supreme Court held that transformative copies of works of art for commercial use require more than just aesthetic changes.[2] The opinion in Warhol reiterated the Fair Use limitations in the Copyright Act, specifying that the purpose and character of the new work must be sufficiently distinct from the original piece.[3] The new work must include “further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.”[4] There are four factors to analyze whether a party violates Fair Use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work.[5] The Supreme Court in Warhol focused heavily on the first factor because artists often only make stylistic changes to a work of art and do not change the purpose or character.[6]
Artists and filmmakers who transform creative works into new forms may be guilty of copyright infringement when commercially producing a similar version of the work unless they also prove a new meaning.[7] The defendant in Warhol used the plaintiff’s photograph of Prince to create several colorful silkscreen portraits.[8] Although the defendant changed the art form and added colors, designs, and text to the piece, the changes were simply aesthetic.[9] The Supreme Court held that because the defendant’s portrait was for commercial use, his changes to the work did not meet the Fair Use requirements in the Copyright Act.[10]
Although the Warhol opinion dealt specifically with photographs and portraits, the outcome applies to other works of authorship, from television shows to social media posts. This decision pertains to motion pictures of art as well, significantly impacting the film industry. Filmmakers may violate Fair Use in the Copyright Act unless they create a new purpose or character that is different from the original film.[11] Stylistic changes to movie clips, like cut scenes and video filters, are not enough to satisfy fair use, the filmmaker must transform the entire outcome of the film.
For example, one moviemaker cannot take a gory clip from an action movie and use the same clip to add a gory scene to their own action movie. However, a documentary maker can take a gory scene from an action movie and use it in an informational documentary about action movies as a whole or a documentary about the other filmmaker’s life.[12] In the first scenario, the moviemaker would be violating Fair Use in the Copyright Act because both movies have the same purpose: to entertain an audience with an exciting film. In the latter scenario, the documentary maker would not be violating Fair Use because the documentary maker would be completely changing the scene’s meaning. A documentary maker would use the scene to inform an audience about action movies or inform an audience about the other filmmaker’s life, and not use the scene to entertain.[13]
The Supreme Court stressed the importance of adding new meanings to old artwork to meet the Fair Use limitation. Still, the opinion also flagged the importance of creators protecting their original works.[14] Filmmakers ought to use caution when choosing material to include in their films and when producing original work. In the film industry, it is common to use prior works in a new film, so filmmakers should not only license and protect their novel works but also transform the meaning of others’ films to maintain originality and encourage authorship.
[1] See 17 U.S.C. §§ 101-1332 (2012).
[2] Warhol v. Goldsmith, 598 U.S. 508, 543 (2023).
[3] See 17 U.S.C. § 107 (2010).
[4] Warhol, 598 U.S. at 509.
[5] 17 U.S.C. § 107.
[6] See generally Warhol, 598 U.S. at 567 (discussing that artists will not comply with Copyright law by changing simply stylistic features of a work of art, unless they also change the actual meaning and message).
[7] See Bella Wetherington, From Art Museums to the Supreme Court: How Does the Decision in Warhol v. Goldsmith Go Beyond Art?, Libr. Futures (Sept. 12, 2023), https://www.libraryfutures.net/post/warhol-v-goldsmith.
[8] Warhol, 598 U.S. at 556.
[9] Id.
[10] See Warhol, 598 U.S. at 556; 17 U.S.C. § 107; Corynne McSherry et al., What the Supreme Court’s Decision in Warhol Means for Fair Use, Elecr. Frontier Found. (May 23, 2023), https://www.eff.org/deeplinks/2023/05/what-supreme-courts-decision-warhol-means-fair-use.
[11] See Patricia Aufderheide, Warhol v. Goldsmith: A Narrow Decision Preserves Fair Use As We Know It for Filmmakers, Filmmaker (May 25, 2023),
https://filmmakermagazine.com/121412-warhol-v-goldsmith-a-narrow-decision-preserves-fair-use-as-we-know-it-for-filmmakers/.
[12] See Peter J. Karol, After Warhol, ArtForum (June 5, 2023, 9:20 AM), https://www.artforum.com/columns/the-transformative-impact-of-warhol-v-goldsmith-252757/.
[13] See id. (stating “If you are a practicing artist using copyrighted source works for a purpose ‘highly similar’ to the purpose to which the original work was put, (…) courts [ ] consider the ‘purpose and character’ of the alleged fair use.”).
[14] See Warhol, 598 U.S. at 572; see generally Cynthia Littleton, A Clear-Cut Win for Artists or A Stifling Effect on Artistic Creation? How Copyright Law Experts View the Supreme Court’s Warhol Decision, Variety (May 20, 2023, 11:30 AM), https://variety.com/2023/biz/news/supreme-court-andy-warhol-copyright-fair-use-1235620108/ (discussing the importance of licensing for artists).
