Ask Permission: The Second Circuit's Transformative Fair Use Inquiry

Abstract

In 2021, in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the U.S. Court of Appeals for the Second Circuit held that artist Andy Warhol’s adaptation of a photograph depicting rock-and-roll star Prince was not a transformative fair use. In so holding, the Second Circuit declined to follow the Supreme Court’s instruction that courts must consider whether and to what extent the use is “transformative”— that is, contributes something novel, with an added purpose or changed character, varying the original work with a unique aesthetic, tenor, or implication. This Comment argues that the Second Circuit rightly narrowed the scope of transformativeness, restoring meaning to Congress’s prescribed balancing test and remedying an undue deprivation of property rights.