Date of Award

5-2026

Document Type

Thesis

Degree Name

Master of Arts in Art History and Visual Culture

Department

Art

First Advisor

James Hutson

Second Advisor

Nadia McDonald

Third Advisor

Caroline Paganussi

Abstract

The case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith demonstrates the subjective nature of the fair use doctrine. Scholars suggest that judges are often forced to interpret expressive works without specialized training in art, leading to inconsistent rulings. These discrepancies can lead to legal ambiguity and potentially weaken First Amendment protections. A deeper understanding of authorship, appropriation, and contemporary art highlights their crucial role in evaluating expressive works. By examining current legislation and judicial precedents, this paper shows the subjective and inconsistent nature of the present legal framework and offers a set of related proposals. It argues that courts should incorporate art historical expertise in visual art disputes. It also suggests that courts should revisit the landmark judgment of Burrow-Giles Lithographic Co. v. Sarony, which established copyright protection for photographs, and more broadly reassess the scope of copyright protection in visual art. Furthermore, it suggests that the U.S. Congress should amend the first factor of the fair use analysis by replacing “and” with “or.”

Research Highlights

  • The Problem: Judicial subjectivity in fair use and trademark analysis leads to legal ambiguity, inconsistent rulings, and weakened First Amendment protections for appropriation art. 

  • The Method: Doctrinal legal research and art historical examination of judicial decisions, statutes, and precedents, specifically focusing on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith and Jack Daniel's Properties, Inc. v. VIP Products LLC. 

  • Quantitative Finding: Analysis of 238 district and circuit court decisions found that 94% of fair use outcomes turned on whether the use was deemed transformative. 

  • Qualitative Finding: Courts prioritize commercial purpose over artistic meaning in "transformative use" assessments; judicial decisions are shaped by interpretations of intent without sufficient art historical expertise; copyright protections for photographers have expanded to grant monopolistic control over visual representations. 

  • Finding: Amending the fair use doctrine to replace "and" with "or" in the first factor would allow works to qualify as transformative if they meet either a new purpose or a new meaning.

Creative Commons License

Creative Commons Attribution-NonCommercial 4.0 International License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License

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