ABSTRACT
The much anticipated case of Andy Warhol Foundation for the Visual Arts v Lynn Goldsmith presents serious questions on the relationship between derivative and transformative works under the copyright, where the former counts as an infringement and the latter does not. In Goldsmith, the famous artist exceeded the terms of the ‘artist reference’ license that Goldsmith’s wholly own corporation issued to Vanity Fair and made works that were both derived on the one hand and transformative on the other. The terms of the license should control whether they call for a fixed fee, a variable royalty or some form of compulsory arbitration at some later date.
In this article, I reject the argument that the fair use privilege covers the case, or that the First Amendment protects Warhol’s Foundation from liability on the grounds that artists frequently borrow themes from each other as part of the creative process, given that in this case that all the borrowing is one direction. Instead, it proposes that the sequential use of copyrighted material should allow Goldsmith to recover for the fair market value of her contribution to the combined work, but not (as often is the case with derivative works) either acquire or destroy the distinctive and highly valuable Warhol creations. In so doing, I claim that the Court’s 2021 decision in Google v Oracle is both incorrect, and, in any event, does not provide useful guidance on how to treat this artistic dispute. The case should be remanded for accurate determinations on the valuation issues.
Epstein, Richard, Sequential Uses of Copyrighted Materials: Transforming the Transformative Use Doctrine In Andy Warhol Foundation v Lynn Goldsmith (September 29, 2022). Forthcoming, Michigan State Law Review; NYU Law and Economics Research Paper No 23-11.
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