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SMU Law Review

Abstract

In May 2023, the Supreme Court decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, articulating the standard for the “fair use” defense under a copyright infringement claim. The Court’s decision significantly narrowed the first factor of the fair use analysis, characterizing “purpose and use” in terms of the commercial nature of a secondary work with little consideration of the art’s creative value. This opinion deviates from the broader conception of “fair use” articulated in Campbell v. Acuff-Rose Music, Inc. (1994) and introduces various implications for modern-day artists and content creators. Specifically, Justice Sotomayor’s majority opinion and Justice Kagan’s dissent struggle with balancing the “transformativeness” and “commercial aspects” of a secondary work. This is a battle between the policy interests of creativity and availability. Ultimately, because of this opinion, artists must approach secondary works with a cautious eye toward a work’s commercial use over its artistic character. In a society where content creation is a rapidly growing commercial market, this could significantly hamper creative progress. This comment explores the fair use doctrine from its origins in pre-colonial English law to its current state, before focusing on the Supreme Court’s recent decision and its implications for creativity and secondary works in future years.

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Digital Object Identifier (DOI)

https://doi.org/10.25172/smulr.77.4.7