This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings. The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial considerations undermines the original purpose of fair use, which is to encourage critical and transformative uses of copyrighted material. Furthermore, the article critiques the Court’s failure to consider practical aspects of art creation and sale, which are integral to fair use analysis in the context of visual art. It contends that fair use analysis should prioritize the contribution of a work to the overall message or expression of a subsequent work, rather than solely focusing on commercialization. The authors of this paper urge courts to reevaluate fair use in visual art, taking into account the inherent complexities and interpretive nature of the medium. They advocate for a more nuanced approach that balances artistic expression with copyright protection, ensuring that fair use continues to foster creativity and innovation in the visual arts.
