This post is an update. Read the original post here. 

In April we wrote about the decision of the U.S. Court of Appeals for the Second Circuit in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021).

That decision concerned a series of silkscreen prints and pencil illustrations of singer Prince by Andy Warhol. The district court had held that the works constituted a fair use of an image by photographer Lynn Goldsmith because they “transformed” a depiction of a “vulnerable human being” into that of “an iconic, larger-than-life figure.” However, a three-judge panel of the Second Circuit Court of Appeals reversed the lower court ruling, holding that the work was not transformative since it retained “the essential elements of its source material.” 

Following our insight, The Warhol Foundation requested a rehearing en banc, on the basis of the Supreme Court’s intervening fair use decision in Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021). The Second Circuit granted the request for rehearing, determined oral argument was unnecessary, withdrew its original opinion and issued an amended one reaching the same result (“Amended Opinion”), Case No. 19-2420 (2d Cir. 2021).

In the Amended Opinion the Court concluded that the Supreme Court’s decision in Google was, contrary to the arguments of The Warhol Foundation, completely consistent with its holding, stating (Amended Opinion at 55-56):

…both opinions recognize that determinations of fair use are highly contextual and fact specific, and are not easily reduced to rigid rules. As the Supreme Court put it, both the historical background of fair use and modern precedent ‘make[] clear that the concept [of fair use] is flexible, that courts must apply it in light of the sometimes conflicting aims of copyright law, and that its applications may well vary depending upon context.’ Google, 141 S.Ct. at 1197…

Importantly, the Amended Opinion notes that

…the Supreme Court in Google took pains to emphasize that the unusual context of that case, which involved copyrights in computer code, may well make its conclusions less applicable to contexts such as ours…the opinion expressly noted that ‘copyright’s protection may be stronger where the copyrighted material…serves an artistic rather than a utilitarian function.’ Google, 141 S. Ct. 1197.

As before, the case was remanded to the district court for further proceedings as to remedies. It’s unclear whether The Warhol Foundation will appeal the decision. Stay tuned.