The Supreme Court’s decision in Andy Warhol Foundation v. Goldsmith was a great first step in reigning in the vast over importance that Courts have been ascribing to “transformation” in fair use cases. While the majority of commentators have focused on the “common commercial purpose” aspect of the decision, the equally important holding is the Court’s recognition and affirmation of the importance of the author’s right to prepare derivative works. Nova Southeastern University's Copyright Officer, Stephen Carlisle, J.D., takes a deep dive into the Court’s opinion (including the dissent) and explains how the concept of “transformative use” almost made extinct one of the author’s most valuable exclusive rights under the Copyright Act.
