Photo Courtesy / ©Lynn Goldsmith
Today, the US Supreme Court issued its order for upcoming cases. Included in the list of cases for the Court to hear in the October 2022 Term is The Andy Warhol Foundation v. Goldsmith. This case will be an important new analysis of “fair use” as it relates to the visual arts after the recent Supreme Court case of Google v. Oracle.
Lynn Goldsmith is a famed photographer and long-time ASMP member, and ASMP has been at the forefront of the push to support Lynn in her bid to protect her rights. ASMP has authored an amicus brief at the 2nd Circuit Court of Appeals when they first heard this case, and multiple articles before and since outlining the importance of this ruling on photographers and the rights of copyright holders.
In August of 2021, Goldsmith won a decisive victory when the 2nd Circuit refused to alter their March 2021 opinion which denied AWF’s appeal. The 2nd Circuit, after applying the “four factor” analysis that is used as the framework for fair use cases, found that all of the factors were neutral or were in Goldsmith’s favor. For a more in-depth analysis on this initial March 2021 opinion by the 2nd Circuit, click here.
After losing their appeal in the 2nd Circuit twice, AWF sought review by the Supreme Court. In their petition to the Court, AWF told the Court that the question at issue is this:
“Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the Second Circuit has held).”
This case and its attendant arguments and ultimate ruling will have significant impact on the visual arts community, specifically focused on the contours of fair use analysis. We will continue to support Lynn in her legal battle against AWF.