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Working Paper

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The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.

In addition to analyzing the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, this Comment also addresses the relevance to transformative use of the Supreme Court’s ruling in Google v. Oracle, and concludes that the highly software-specific context of that case cabins its fair use analysis to functional code far from the “core of copyright.”


Intellectual Property Law | Law