Breaking News: Second Circuit Transforms Transformative Use in Warhol Foundation v. Goldsmith

When: April 14, 2021 at 12:30pm - 1:00pm EDT - This event has passed

ABOUT The Update:

On March 26, 2021, the Second Circuit reversed the District Court’s (Judge Koeltl) finding of fair use in favor of the Andy Warhol Foundation for the Visual Arts, Inc. as to Warhol’s use in his artwork of photographs of the famed pop icon Prince taken by well-known celebrity photographer Lynn Goldsmith. The Court found Judge Koeltl’s assessment and application of the fair-use factors to be incorrect and that the Warhol works in question did not qualify as fair use as a matter of law. The decision not only placed heavy emphasis on the fourth fair use factor (i.e., “the effect of the use upon the potential market for or value of the copyrighted work”), but it was also critical of the propensity of courts—particularly the Second Circuit itself in previous cases—to find a “transformative use” and thereby a fair use whenever the allegedly infringing work imbues the allegedly infringed work with a new aesthetic or meaning.
Does this signal a sea change in “fair use” jurisprudence? Will the Warhol Foundation file a certiorari petition with the Supreme Court. If so, will SCOTUS grant cert. and take the opportunity to delimit the ambit of what constitutes a “transformative use”? What short- and long-term implications does this have for artists and lawyers in assessing “fair use” issues?
Join copyright litigator Ken Freundlich, Esq., and copyright scholar Dr. Bhamati Viswanathan as they lead a discussion of this important decision and its implications for the future of fair use jurisprudence. 



Kenneth Freundlich
Founding Principal, Freundlich Law

In his 35 years of practice, Ken has primarily focused on resolving complex business, entertainment, and IP disputes and is renowned for representing individuals and companies with his pragmatic aggressiveness, relatability, business acumen, and ability to handle everything from everyday business disputes to complex, ground-breaking cases. Ken is a seasoned litigator and trial counsel licensed to practice in the state and federal courts of New York and California (among other courts) and has had notable successes in trials, arbitrations, and administrative proceedings in various settings ranging from California Labor Commission proceedings, to IFTA, Guild, and AAA/JAMS arbitrations, to Copyright Rate Court proceedings, to trial and appellate courts (including the United States Supreme Court). Ken is a well-known participant and moderator in panels concerning entertainment law issues. Ken’s experience also includes a stint as the Executive Vice President of Atomic Pop, LLC, an early 2000’s internet-based record company (way ahead of its time) that sought to provide a platform to distribute entertainment content through digital media. At Atomic Pop, Ken was part of the company’s leadership team, navigating through complicated new media legal and business issues, acquisitions, strategic and financial planning, syndication, joint ventures and due diligence management. A proud graduate of UCLA’s joint JD/MBA program, Ken is one of the few litigators who does not shy away from the quantitative or business side of cases. Whether it is grilling the opposing party’s experts about complex royalty statements, unraveling a party’s intricate corporate structures and related corporate issues, or negotiating and drafting an agreement to resolve a dispute or pave a way forward in business to maximize a client’s bottom line, Ken’s varied education and experience give him a bespoke set of skills with which to serve his clients.

Dr. Bhamati Viswanathan

Affiliate Professor, Emerson College

Bhamati Viswanathan is an independent legal scholar and an Affiliate Faculty in the Business of Creative Enterprise program at Emerson College. She was awarded an S.J.D. and an LL.M. by the University of Pennsylvania Law School. She holds a J.D. from the University of Michigan Law School and a B.A., cum laude, from Williams College. She is the author of Cultivating Copyright: How Creative Industries Can Harness Intellectual Property to Survive the Digital Age (Routledge/Taylor & Francis Press: July 2019). Bhamati is passionate about educating creators and creative industry participants about the value and usefulness of copyright, and she is particularly committed to helping empower artists of color in the U.S. and the developing world. Bhamati is a Trustee of the Copyright Society. She is also a Trustee of the Williams Asian and Asian American Alumni Network. She resides in Boston.



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CLE credit will not be offered for this breaking news update.


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