The Appellate Litigation team has filed an amicus brief on behalf of the Robert Rauschenberg Foundation in connection with Goldsmith v. The Andy Warhol Foundation, an important Second Circuit case about copyright’s fair-use doctrine.
The Rauschenberg Foundation submitted the amicus brief to propose a framework for understanding fair use that would maintain the proper balance between free expression and the protection of an artist’s creative work, and to provide a roadmap for how courts should determine whether a secondary work is “transformative” of the first. The Rauschenberg Foundation argues that courts should undertake a two-step inquiry: First, the court should first compare the two works to determine whether transformation is readily apparent even to the untrained eye. Second, if transformation is not readily apparent, courts should consider additional evidence—from, for example, art historians, curators, members of the relevant audience, or the creator of the secondary work, among other sources— to determine whether the use is transformative despite physical similarities between the two works. The Rauschenberg Foundation’s brief displays a number of examples (including Manet’s Olympia, and Charles Lutz’s series Warhol Denied) to illustrate the many ways in which a secondary work of art can transform the meaning and message of a primary work despite physical similarities between the two.
The Robert Rauschenberg Foundation fosters the legacy of Rauschenberg’s life and work. The foundation supports artists, initiatives, and institutions that embody the same innovative, inclusive, and multidisciplinary approach that Rauschenberg exemplified in both his art and philanthropic endeavors.