Vanderbilt Journal of Entertainment & Technology Law

First Page



Three copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense.

The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks.

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith illustrates the conflicts appellate courts face when they are forced to analyze cases solely through the lens of fair use. This Article embraces Warhol’s majority opinion but suggests that the dissent’s concerns about judicial reluctance to engage with and understand creative works aesthetically are not entirely misplaced. Such engagement should happen earlier in the infringement inquiry, however—not merely as part of a fair use analysis. This Article expands the 2022 Meyer Lecture delivered by this Author shortly after oral arguments concluded in the Warhol litigation. It urges that to ensure the best outcomes for all artists, courts should apply a procedurally conscious approach to analyzing copyright infringement cases involving visual artworks. Specifically, district courts should establish a solid record that the first work is original; then inquire whether the second work infringes, applying the test for substantial similarity. Only if they find infringement should courts consider the affirmative defense of fair use.

Following the proper procedural path is crucial to balancing all parties’ interests—particularly when the works of two artists are involved. Allowing both the first and the second artists equal voice in representing the originality of their contributions is necessary to ensure an adequate factual record in copyright litigation. Courts require this record to anticipate the impact of their rulings on future litigants and the art world at large. These goals are consistent with copyright jurisprudence, which encourages creativity and original contributions to the creative lexicon.