Commentary: Warhol decision’s implications for creators, artists; Minnesota Lawyer, June 16, 2023

 Jack Amaral and Jon Farnsworth, Spencer Fane LLP, Minnesota Lawyer; Commentary: Warhol decision’s implications for creators, artists

"Impact on artists and copyright holders

This decision is a victory for copyright holders. Although copyright infringement and analysis of the Fair Use Doctrine is a case-by-case factual analysis where a judge determines whether fair use is a valid defense based on the four factors above, this decision sends a clear message that commercial uses of copyrighted works might be less likely to be considered fair use. This decision could have a significant impact on photographers, artists, and other creators such as software engineers.

Creators who build off copyrighted works should be aware of this decision and know the potential consequences of building off of other’s work. This decision will likely make it more difficult to show a work is “transformative” while leaving an artist open to liability...

Takeaways for creators and businesses:

• If you have current works that are protected under copyright law, keep your eyes peeled for potentially infringing works. Speak with an experienced intellectual property attorney to see if you may have a valid infringement claim.
• If you build off of other creator’s work to create your own, speak to an intellectual property attorney who will walk you through the four factors of the Fair Use Doctrine and help determine if your work could be considered infringement and open you up to potential liability."