Private Law Theory

ABSTRACT
What is fair use? In Warhol v Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement.

Frye, Brian L, Art Wants to be Free (March 17, 2024), Journal of Intellectual Property Law, Forthcoming.