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UCLA Entertainment Law Review

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Art is Big Business: Fine Art, Fair Use, and Factor Four After Goldsmith


This Article explores fair use jurisprudence in the fine art context. Particularly, this Article proposes that, motivated by an increasingly commercial contemporary art landscape, courts may be reevaluating their approaches to fair use in this sphere. Part I of the Article provides background on fair use law in the fine art context, specifically focusing on the difficulties posed by appropriation art in copyright law. Part II of the Article explores changes to this paradigm following the Second Circuit’s recent decision in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith. I focus on the Second Circuit’s reemphasis of the fourth fair use factor, as well as the copyright holder’s pecuniary interests in licensing within the fourth factor analysis. Part III offers several motivations that may have informed the Goldsmith decision: (1) overly broad interpretations of transformative use from the 1990s to 2010s; (2) a shift away from equitable relief in copyright infringement actions; and (3) growing concern regarding socioeconomic inequality both within and beyond the fine art sphere. Informed by this analysis, Part IV of the Article asserts that, contrary to popular belief, fine art may not be unique when compared to other copyrightable works. As such, distinctly laissez-faire approaches to fair use in this sphere are no longer justifiable. Accordingly, the Goldsmith decision and its nod to aesthetic pluralism may instead reconcile the aspirations of the U.S. copyright system with internal shifts in the contemporary art economy.

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