The Transformative Fair Use Test after Andy Warhol Foundation v. Goldsmith (2023)

In May 2023, the Supreme Court issued its opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Although the case is destined to described as a landmark decision, if only because it is just the third Supreme Court case to officially interpret the meaning and application of the transformative test for fair use in copyright law, the case was written to be a very narrow clarification of transformative fair use law.

This update will discuss and analyze the copyright fair use transformative test after the Supreme Court’s opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. It will explain and analyze the Court’s decision and its interpretation and application of the transformative test, and it will give some guidance to artists and art law practitioners and professors regarding the meaning and application of the transformative test after Warhol.

The lessons of the transformative test after Warhol for those engaged in creative, artistic, or literary pursuits may be summed up in the following: if you copy an original work, use it for a different purpose than the purpose for which the original work was created. Modify the contents, function, and meaning of the original work through alteration of the original expression or the addition of significant new expression. Otherwise, you are making an unauthorized exploitation of the creative expression of the work for exactly the same reasons and purposes that the original author or artist created the work, and you are depriving the original author or artist of the derivative works right guaranteed by copyright.