What the Warhol Court Got Wrong: Use as an Artist Reference and the Derivative Work Doctrine

Abstract

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may be subject to the exceptions and limitations in the statute, such as fair use. Examining longstanding artistic practices, case law, and our recent study of professional photographers, this Article develops a more nuanced view of the relationship between the artist reference and the derivative work. Drawing on this evidence, we argue that courts should explicitly engage with the characteristics and context of the reference and the new work before arriving at a determination of infringement or noninfringement between the two works. This reasoning applies equally whether the use of an artist reference is initially licensed or unlicensed by a second artist. When expressly authorized, artist references are simply permissions to use—a ticket to entry, permission for access to the work in its tangible and intangible forms. And, importantly, they are just the beginning of an artistic process. What the new author produces based on the artist reference makes all the difference, and legal liability should depend on aesthetic evaluation of both the referenced work and the new work. Avoiding that aesthetic evaluation and misconstruing an agreement to “use as an artist reference” as a license to prepare a derivative work, which the Supreme Court did in its formalistic approach in Warhol, is a shortcut that distorts copyright law and harms creative practice.