Does an artist have unlimited rights to take another’s work without compensation or permission as the basis for new art? The Supreme Court is about to answer this question in the controversial Warhol case.
Andy Warhol, like other well-known “appropriation artists,” was famous for taking the copyrighted work of others and transforming it with a new purpose or character – e.g., the Campbell’s Soup Can art. Warhol (like other artists) in response to a copyright claim, would assert that he created a “transformative” art work and, thus, under the doctrine of “fair use” was allowed to disregard the original author’s copyright.
A “transformative” work is a second work that “adds something new, with a further purpose or different character” to the first work or alters the first work with new expression, meaning, or message. This test, while simply stated, has proved to require complex and nuanced analysis by the courts.
Test your ability to discern if a second work is “transformative” of an original or not with this short quiz. (Case notes at end)
Shepard Fairey v. Associated Press (SDNY 2009). The first image is Barack Obama by Associated Press (AP) photographer Mannie Garcia. The second image is of artwork by visual artist Shepard Fairey.
Easter Unlimited, Inc. v. Rozier, (EDNY 2018). The first image is the Ghost Face Mask, copyrighted by Easter Unlimited, Inc. The second image is a T-shirt graphic from the "Scary Terry" clothing line by NBA player Terry Rozier.
Dr. Seuss Enterprises, L.P. v. ComicMix LLC (9th Cir. 2020). The first image is by Theodore S. Geisel, aka Dr. Seuss. The second image is artwork by D. Gerrold and H. Hauman, owned by ComicMix LLC.
Cariou v. Prince (2d Cir. 2013). The first image is of a photo by photographer Patrick Cariou. The second image by artist Richard Prince and is titled "Graduation".
The first image is by Cariou and the second image is by Prince and is titled “Back to the Garden.”
Rogers v. Koons (2d Cir. 1992). The first image is of a photo titled “Puppies,” by photographer Art Rogers. The second image is of a sculpture titled “String of Puppies,” by artist Richard Koons.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2d Cir. 2021). On March 28, 2022, the Supreme Court agreed to hear this case. The first image is a photo by photographer Lynn Goldsmith of the musician Prince. The second image is artwork by Andy Warhol based on Goldsmith’s photo.