Changing the appearance or message of an image does not automatically settle fair use. The particular use being challenged can be central to the analysis.
The Supreme Court’s May 18, 2023 decision in Andy Warhol Foundation v. Goldsmith addressed the first fair-use factor in a dispute over licensing a Prince image for a magazine. The Court concluded that the purpose and character of that particular commercial use did not favour the foundation. The decision was not a ruling that every Warhol work, or every artistic reuse of a photograph, is unlawful.
Check the intended use
- Identify the original photograph and the proposed reuse. Keep the actual image and intended placement available for review.
- Describe the purpose: a commentary, exhibition, magazine illustration, advertisement or other use. Do not rely only on how different the image looks.
- Review the relevant permission or license and its scope. A permission for one publication does not automatically describe all later uses.
- If relying on fair use, examine the complete analysis with the actual facts rather than treating “transformative” as a passcode.
Useful resources
Copyright Office summary of Warhol v. Goldsmith — summarises the Supreme Court decision and the particular use at issue.
Supreme Court case docket — provides the official decision entry and case documents.
For an artist or publisher, the practical step is to explain the real proposed use before spending money on production or licensing. This dated case explainer does not decide whether your project is fair use.
Have a question about your situation? Request a consultation with Arrington & Phillips.
General information, not legal advice for a specific matter.
