a magazine article on Prince . And that makes it derivative and potentially infringing , not transformative .[ 5 ]
Artists beware — it ' s not how hard you work but how differently you use the art that really matters .
In reaching its decision , the majority balanced the original copyright holder ' s exclusive right to create derivative works — i . e ., " recast , transformed , or adapted works " — with the fair-use doctrine , which " permits courts to avoid rigid application of the copyright statute , when , on occasion , it would stifle the very creativity which that law is designed to foster ."[ 6 ]
So , to preserve a copyright owner ' s right to create derivative works , " the degree of transformation required to make ' transformative ' [ and thus fair ] use of an original must go beyond that required to qualify as a derivative ."[ 7 ]
Accordingly , a " use that shares the purpose of a copyrighted work ... is more likely to provide the public with a substantial substitute for the matter protected by the copyright owner ' s interests in the original work or derivatives of it ."[ 8 ] In other words , art that supersedes other art in substance and purpose of use is not transformative fair use .
As to this central point , perhaps there is some agreement among the court . But the majority and the dissent disagreed most vociferously on whether Warhol ' s " Orange Prince " indeed supersedes the object of that work , Goldsmith ' s photo .
To answer this question , the majority focused on the similar commercial nature of both Goldsmith ' s photo and Warhol ' s illustration , while the dissent aims at the artistic differences between the works themselves , writing that the works " could not have been more different ":
All I can say is that it ' s a good thing the majority isn ' t in the magazine business …. [ An editor ] would be drawn aesthetically to one [ work ], or instead to the other . You would want to convey the message of one , or instead of the other . The point here is not that one is better and the other is worse . The point is that they are fundamentally different . You would see them not as substitutes , but as divergent ways to ( in the majority ' s mantra ) " illustrate a magazine about Prince with a portrait of Prince ." Or else you ( like the majority ) would not have much of a future in magazine publishing .[ 9 ]
But it is the majority decision that governs , and as such , artists and copyright owners must now keep in the forefront of their minds the potential future uses of a work even decades later when evaluating whether the new creation is fair use or unlawfully derivative . Where will this lead ? Likely to more licensing .
In order to immunize new works based on a prior work from a subsequent threat of copyright infringement , artists could obtain a license to create derivative works from the prior rights holder . Easy , right ? Only if license fees are economically viable .
If license fees are cost-prohibitive , artists may make the decision to do something different , which could have the effect of minimizing the prevalence of new works that comment on or draw from prior works .
However , given that at the time of creation of a subsequent work the value of that work is difficult to quantify , license fees to the prior rights holders may be relatively low .
Indeed , the license fee Goldsmith charged to Vanity Fair was low : $ 400 . Adjusted for inflation , that ' s