US Second Circuit Court of Appeals tames ‘transformative’ fair use; rejects ‘celebrity-plagiarist privilege’; clarifies protectable expression in photographs

Andy Warhol Found for the Visual Arts, Inc v Goldsmith, 992 F.3d 99 (2d Cir 2021) The Second Circuit reversed the SDNY’s grant of  summary judgment that Andy Warhol’s silk screen adaptation of a photographic portrait of entertainer Prince was a fair use; the 2d Circuit’s decision 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 court also provided an important explanation of copyrightable authorship in photographs.