SCOTUS “Fair Use” Fears

Andy Warhol Foundation v. Goldsmith

Today in the SCOTUS blogAndy Warhol Foundation v. Goldsmith. This is a case that everyone in the media business should be highly focused on. The decision (either way) will affect every creator, every publisher, and possibly every platform as well.

The technical legal issue under consideration: Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held) or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).

In other words: What is the legal difference between “inspired by” and a “direct knockoff”? When is it okay to create a “derivative work” and when does it violate copyright law? The current legal standard for fair use comes down to four basic questions: (1) What is the purpose of the new work? (2) What is the nature of the new work? (3) Is the original work substantially used in the new work? (4) How does the new work impact the market for the original work?

Why you care: If the art is found to be derivative, the Warhol Foundation will owe Goldsmith millions in fees, royalties, and perhaps additional damages. That’s not the important part. If the decision is in favor of Goldsmith, every AI that is trained to preserve and protect copyrighted material will need to be tuned to include detecting derivative works. The algorithms will err on the side of caution. At the dawn of the generative art, video, music, and still image revolution, this would be/will be/is going to be a nightmare for everyone.

Watch this case closely. Either way, the outcome is going to change how everyone uses content in all media now known or hereafter devised.

About Shelly Palmer

Shelly Palmer is the Professor of Advanced Media in Residence at Syracuse University’s S.I. Newhouse School of Public Communications and CEO of The Palmer Group, a consulting practice that helps Fortune 500 companies with technology, media and marketing. Named LinkedIn’s “Top Voice in Technology,” he covers tech and business for Good Day New York, is a regular commentator on CNN and writes a popular daily business blog. He's a bestselling author, and the creator of the popular, free online course, Generative AI for Execs. Follow @shellypalmer or visit



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