Warhol Foundation Doesn’t Benefit From ‘Plagiarist Privilege’

This term, the U.S. Supreme Court revised the scope of the fair-use defense for appropriation. Appropriation is an accepted technique in contemporary art, where an artist makes use of another artist’s work to evoke, comment, or build upon that other work. The development of appropriation as an explicit art form in the 20th century brought copyright protections into conflict with artistic expression. In particular, the imprimatur of artistic merit afforded to appropriation by the reputation of an already famous artist produced complicated questions around artistic integrity and the status of artworks as articles of commerce.

Generative AI models, such as those trained to generate images, sound, or text from input prompts, are presently able to generate outputs that are recognizably in the style of living artists, both renowned and lesser-known. In this way, AI technology presents a mirror-problem, where unknown users can gain recognition by appropriating expressive features from established artists trained into publicly available tools. The Court’s analysis, therefore, is relevant to both cases, and while the opinion does not directly address AI, users of such models should be aware that asking for outputs “in the style of” a living artist could give rise to copyright infringement.

Andy Warhol Foundation for the Visual Arts, Inc. V. Goldsmith concerns whether the Andy Warhol Foundation (AWF) infringed the copyright held by Lynn Goldsmith in her photograph of the artist Prince, when it licensed Warhol’s version (“Orange Prince”) of Goldsmith’s photograph to the media company Condé Nast for a magazine cover. At issue was whether the fair use defense applies to appropriation. Rather than broadly refashion the law, the Court issued a narrowing interpretation of the first fair use factor, in the form of a new judicial test.

“Fair use” is an affirmative statutory defense to infringement that protects a subset of secondary uses of original works. These include parody, satire, and other uses that satisfy a multi-factor judicial test. The Court addressed the first fair use factor, concerning the purpose and character of the use, and outlined a three-step test for determining which side is favored. The first step examines whether the challenged use has a further purpose or different character. The second step weighs the degree of that difference against the commercial nature of the use. The third step determines whether a persuasive justification for the unauthorized use is found.

In applying this to the facts of the case, the Court noted:

1. The challenged use was licensing an image of Prince to magazines for a special edition commemorating Prince.
2. The purpose of the images was substantially the same: portraits of Prince to illustrate stories about Prince, highlighting “the degree of similarity between the specific purposes of the original work and the secondary use at issue.”
3. Both uses are of an undisputed commercial nature.

The outcome of the first two steps weighed in favor of Goldsmith, because Orange Prince and Goldsmith’s original “share substantially the same purpose,” and “the copying use is of a commercial nature.” Further, Warhol’s “new expression” added to Goldsmith’s photograph in Orange Prince was insufficient to overcome the commercial nature of the use. The Court also rejected the notion that a new meaning or message makes the use transformative in the fair use sense. The mere fact that a use adds some new expression, meaning, or message does not make the use transformative, or it would swallow the copyright owner’s exclusive right to prepare derivative works.

The opinion connects transformative use with a determination whether the new use served a purpose distinct from the original use. The stated or perceived intent of the artist or the meaning or impression that an audience draws from the work, in the Court’s reasoning, cannot be determinative of whether a use is “transformative” or any alteration would be transformative.

Why Does ‘Fair Use’ Matter?

Creating art is more than merely grabbing lightning from the sky; it is a conversation that builds upon and reacts against that which came before. In a dissent, Justice Elena Kagan wrote that in the visual arts, “‘[T]he use and reuse of existing imagery’ are ‘part of art’s lifeblood’—’not just in workaday practice or fledgling student efforts, but also in the revolutionary moments of art history.’” And in contemporary music, what often gives art “its edge and vitality, is its devil-may-care attitude toward appropriation—everybody is grabbing stuff from everybody else, all the time. It’s a feeding frenzy of borrowed ideas that goes toward the advancement of rock music—the great artistic experiment of our era.’”

The fair use defense “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” In this ruling, the scope of transformative use has been defined narrowly to better protect an owner’s copyright against appropriation by artists whose reputations elevate the status of the copy over the original. Derivative uses that are recognizable from the style of a known artist do not automatically qualify as transformative, closing a de facto “celebrity-plagiarist privilege” carve-out in copyright protections.

Interestingly, the new test could also apply to common users of generative AI models, in that a model output that hews too closely to a recognizable style or includes explicit elements from preexisting works could be indefensible under fair use. While generative AI models are complex, sophisticated models that draw from vast training sets of existing works, the ability of users to prompt a model for specific styles, including those of known artists, introduces risks of copyright infringement.