Abstract
“Fair use” is a commonly invoked term of legal art that dates back to the 19th century and has undergone significant transformation since its inception. Specifically, the first factor of fair use, encompassing transformativeness, purpose, and commercial use, has generated significant circuit splits, leading to disparate outcomes for litigants depending on the presiding circuit. In an attempt to alleviate the unharmonious application of the fair use doctrine, the Supreme Court of the United States granted certiorari to a 2023 Second Circuit case involving the famed Andy Warhol Foundation. However, in the wake of the opinion’s release, critics have claimed that the Court has not only left the legal community unsure on the doctrine’s applicability moving forward, but that its consequences will stifle the free flow of creativity. This Comment aims to take on the rather contentious task of defending the Court’s decision. Specifically, this Comment strives to demonstrate the merits of the Court’s refined, objective inquiry by showing that, applied retroactively, and across diverse artistic landscapes, the doctrine does not “stifle creativity of every sort,” but rather leads to similar outcomes in most cases. This Comment first provides an overview of fair use and its doctrinal development. It then examines factors two through four before focusing on the heightened significance of factor one. Finally, this Comment applies the refined Warhol doctrine to a number of recognizable past cases, each falling under a different category of 17 U.S.C. § 102(a), but more specifically involving visual art, software, and multimedia.
Repository Citation
Graham Lemke,
From Software to Multimedia: How Warhol's Refinement of the First Fair Use Factor Upholds Prior Rulings Across the Copyright Landscape,
30
Marq. Intell. Prop. & Innovation L. Rev.
293
(2026).
Available at:
https://scholarship.law.marquette.edu/ipilr/vol30/iss2/7