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<\/figure><\/div>\n\n\n\nUpon trial, Goldstein argued that any reasonable observer could see that Warhol had unlawfully copied her photo without her permission. The Foundation responded by applying the transformative use defense: they argued Warhol\u2019s use of Goldsmith\u2019s photo was fair because, in creating his work, Warhol had applied his own artistic meaning and message to the original photo. The United States District Court for the Southern District of New York held<\/a> that Warhol\u2019s work was protected under the fair use doctrine, as its nature was transformative due to its added expression and aesthetics. On appeal, however, the Second Circuit reached a contrary decision. They applied the unprecedented rule that, in determining whether a work is infringing, courts should not consider the accused artist\u2019s intention or the implicit meaning of the work at issue; rather, courts should seek to determine whether a work \u201cremains both recognizably deriving from, and retain[s] the essential elements of, its source material.\u201d Referring to this standard, the court held<\/a> that Warhol\u2019s work was, in fact, infringing. On appeal before the Supreme Court, the Warhol foundation will continue to assert that Warhol’s use of Goldsmith\u2019s photo was fair under the transformative use doctrine, as Warhol\u2019s work created a new message and meaning for the original photo.<\/p>\n\n\n\n The transformative use standard, the center of this controversy, is encapsulated by the fair use doctrine. The fair use defense to copyright infringement permits third parties to use copyrighted works without permission from the author. Further, this doctrine intends to safeguard and promote free expression. The transformative use standard, a subcategory of the fair use defense that was first applied<\/a> by the Supreme Court in 1994, hinges on whether the new work is \u201ctransformative\u201d in that it alters the prior work with new expression; meaning; or message, thereby creating a separate, non-infringing work.<\/p>\n\n\n\n …the transformative use standard propels creative expression and cultural growth through visual arts<\/p><\/blockquote>\n\n\n\n If the Second Circuit\u2019s ruling is affirmed in the upcoming Supreme Court case, the transformative use standard could be illegitimized. On one hand, the transformative use standard propels creative expression and cultural growth through visual arts. Simultaneously, as Goldsmith argues, upholding this standard may dilute the fair use doctrine, thus compromising many artists\u2019 exclusive rights to their work.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The upcoming case ultimately raises the question of the extent to which artists may create new works by adding their own creative elements to existing art. As many pro-Warhol Foundation\u00a0amicus briefs<\/a>\u00a0have noted, a pro-Goldsmith decision imposes risks upon today\u2019s generation of artists, especially those whose creative output incorporates ingredients from preexisting works. As the creation of derivative artworks by using digital technologies has\u00a0flourished<\/a>in recent years, the Supreme Court\u2019s decision could greatly disrupt this method of creation, thereby impeding the growth of many sectors of the contemporary art realm. Specifically, works featuring the creative re-use of musical samples, components of digital images and videos, and other technological mediums could be deemed unlawful if the Court overturns the transformative use standard. Writing in\u00a0The Atlantic<\/em><\/a>, media attorney and professor Paul Syznol further explains the range of implications the fair use doctrine has on the realms of technology and media: the doctrine allows us to record broadcast materials; permits filmmakers to incorporate clips from existing materials into new projects; and makes it possible for Google to use thumbnails as results of an online search. Therefore, if the Supreme Court does not reaffirm the transformative use standard, some of contemporary art\u2019s greatest collections, as well as studios; galleries; textbooks; websites; and Instagram accounts could be deemed unlawful, thereby massively reducing artists\u2019 freedom of creative expression.<\/p>\n\n\n\n Allison Cronin<\/strong><\/p>\n\n\n\n Allison Cronin attended Lehigh University, where she majored in both Psychology and Health, Medicine & Society. During law school, she has been involved in numerous pro bono projects and currently serves as the Pro Bono Coordinator for UNC’s Law Students Against Sexual and Domestic Violence. In her free time, Allison enjoys creating art and weightlifting.<\/p>\n","protected":false},"excerpt":{"rendered":" This week, the Supreme Court will review a novel matter that could dramatically change the landscape of contemporary art law. The controversy surrounds the applicability of the \u201ctransformative use\u201d standard in copyright law, a category of the fair use defense to copyright infringement. If the transformative use standard is overturned by this decision, artists\u2019 freedom of …<\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[396,179,399,383,398,397],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8764"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=8764"}],"version-history":[{"count":2,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8764\/revisions"}],"predecessor-version":[{"id":8767,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/8764\/revisions\/8767"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=8764"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=8764"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=8764"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}