The Supremes Transform The Fair Use Transformative Defense In Case Involving Andy Warhol Modification Of Photograph Of Prince

Would Marilyn’s Estate have the Same Claim?

The Supreme Court recently issued its decision on the application of the fair use defense to Andy Warhol’s modified version of a photograph of Prince (“Warhol’s Version”). The decision will be cited for decades, and this article provides a summary to spare readers from having to slog through the eighty-seven pages of the decision (including the majority, concurring, and dissenting opinions). The decision changes the framework for deciding whether a new work (the “New Work”) is protected by the fair use defense against a claim of infringement of an original work (the “Original Work”). Here are the takeaways from the decision: