Fair Use after Warhol: Better? Worse? or Just Different? - Creative Law Center

Fair Use after Warhol: Better? Worse? or Just Different?

Fair Use after Warhol: Better? Worse? or Just Different? [Live Workshop]

Copyright protects artwork of all kinds including audiovisual materials, photographs, and written work against unauthorized use by others, but it is subject to a number of exceptions designed to assure space for future creativity.

Of these exceptions, fair use is the most important and the most flexible.

In this month’s workshop, we will delve into the profound impact of the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith on fair use practices in the creative community since it was announced in May 2023.

The Warhol Decision’s Impact

The Supreme Court’s decision in Warhol has thrown 30 years of fair use practices into question, challenging long-standing precedents and interpretations. The ruling has introduced a new emphasis on the specific commercial context of use, which is different from the previous understanding of transformative use.

Lower courts are just beginning to figure out how to apply the Supreme Court’s holding to facts at the trial court level, leading to varied interpretations and outcomes.

While waiting for court decisions to percolate, creatives are putting the Warhol guidance into practice because we do not have the luxury of waiting for the judicial system to sort out what the Supreme Court actually meant.

This ongoing process underscores the importance of staying informed about how these legal principles are being adapted and applied in real-world cases and in real life.

What You Will Learn

Case Analysis: Explore how lower courts have interpreted and applied the Warhol decision in recent cases. We will review significant rulings highlighting the sometimes nuanced and sometimes drastic shifts in judicial perspective on fair use.

Purpose and Character: Gain a deeper understanding of the first fair use factor—“purpose and character of the use”—and how the courts are now assessing the transformative nature of works.

Commercial Impact: Understand the implications of the Warhol decision on commercial licensing and how this affects artists and creators.

Practical Guidance: Receive practical advice on navigating the complexities of fair use post-Warhol, including how to assess potential risks and benefits when incorporating the work of others into your own work.

Importance of Staying Updated

As a creative professional, staying current on developments in fair use is crucial. The interpretation of what constitutes fair use can significantly impact your creative and commercial activities.

Understanding recent court decisions and learning about community practices ensures you are equipped with the knowledge to make informed decisions, avoid legal pitfalls, and leverage fair use effectively in your work. Keeping abreast of these changes helps protect your rights and fosters a more dynamic and legally compliant creative process.

This workshop is being offered as a stand alone opportunity. You do not have to be a member of the Creative Law Center to attend it (members will have access, of course, and need not purchase the workshop separately). You’ll get an email with the Zoom link for Thursday, July 18th at 1 p.m., ET once you sign up. You will have access to the replay for a year.

This is a live, interactive workshop using Zoom. You will be able to ask questions in real time, so bring your list.

Understand the New Direction that Fair Use is Taking

The right to make fair use of copyrighted materials is a key tool for the creative community, although we do not always choose to take advantage of it.

Many folks still seek copyright permissions in order to to maintain relationships or to obtain access to needed material. But in other cases, creatives may choose instead to employ fair use of copyrighted material in order to accomplish their professional goals.

If you rely on fair use to create new work by building on preexisting work, this workshop is designed for you.

Join us on July 18th at 1 p.m. ET.

About the Author

Kathryn Goldman helps small business people, writers, artists, and creative professionals make a living from their creative work by teaching them how to protect and enforce their rights. She is an attorney who writes these posts to help you be more thoughtful about intellectual property and the law as you build your business, write your stories, and create your art.