Fair Use and Copyright in Art: When Is It Legal to Use Protected Material?

A common artistic practice involves using preexisting works or elements to create new art. Examples range from sharing principles of an artistic movement to reproducing and creatively elaborating others' works. Legally, the first case involves public domain elements freely usable by anyone; the second may constitute copyright infringement. A recent New York district court ruling (July 2019) involved the Andy Warhol Foundation and photographer Lynn Goldsmith over alleged copyright violations of Goldsmith's photos used by Warhol for his Prince Series. The court assessed whether Warhol's use constituted fair use. Under U.S. fair use doctrine, using protected material for purposes like criticism or teaching is not infringement if four conditions are met: purpose and character of use (including commercial or nonprofit educational), nature of the copyrighted work, amount used, and effect on the potential market. The court found Warhol did not violate copyright due to fair use. This aligns with U.S. precedent, but outcomes vary, as seen in the dispute between photographer Patrick Cariou and artist Richard Prince, where Prince was found liable. The ruling did not address image rights of the photographed person, which requires separate consent. The article was published on Artribune Magazine #53 by Raffaella Pellegrino.