Fair Use After Warhol

Warhol's Transformativeness Test in Commercial Photograph Cases (2023–2025)

The first fair-use factor now turns on purpose, not aesthetics. The question is no longer whether a secondary work adds new expression but whether the use "merely supersedes the objects of the original creation" or instead carries a further purpose or different character — and where the two uses share the same or highly similar purposes and the secondary use is commercial, the factor will likely weigh against fair use absent some other justification for copying. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). Applied to photographs, that reframing has proven highly plaintiff-friendly.

In the courts of appeals, the reframed test has mostly doomed commercial photograph uses. Purpose is measured objectively: a concert photograph taken to capture a portrait of a musician, then used by a news website to depict the same musician in a listicle, is not transformative, because the two uses "share[d] substantially the same purpose." Larry Philpot v. Independent Journal Review, 92 F.4th 252 (4th Cir. 2024). Commerciality is no more forgiving. What matters is whether the user stood to profit without paying the customary price, not whether the venture succeeded — so the $2 to $3 the article earned in advertising revenue changed nothing.

Nor can a defendant simply announce a new message. Transformativeness "turns on whether the copying of the original communicates a message that differs from the message of the original — not whether the copier separately declares such a message," Romanova v. Amilus Inc., 138 F.4th 104 (2d Cir. 2025) explains, reversing a fair-use dismissal that had been entered after the defendant defaulted. The commercial website there had republished a photograph to illustrate a claimed publishing "trend," and the Second Circuit read Warhol to require a justification for copying in all fair use cases, not just parody.

District courts have drawn the same line. Textual criticism of a photograph's subject is not criticism of the photograph itself, so fair use failed at summary judgment where a photographer and a news blog had both used the photos as illustrative aids for articles about their subjects. Dermansky v. Hayride Media, LLC, No. 2:22-cv-03491 (E.D. La. Sep 21, 2023). And courts "routinely" find no transformative use where a photo serves as a mere "illustrative aid" depicting the subjects described in an article — though a use that adds commentary or criticism directed at the image itself can still qualify — which is why Cobb v. American Urban Radio Networks LLC, No. 1:24-cv-01305 (S.D.N.Y. Feb 27, 2025) declined to dismiss on fair-use grounds.

The principal counterweight shows what a distinct purpose looks like in practice. A for-profit art studio reproduced copyrighted artworks in art kits for students, converting works made to decorate into materials made to teach — an educational purpose distinct enough from the originals' decorative one to render the use transformative despite its commercial character. Keck v. Mix Creative Learning Center, 116 F.4th 448 (5th Cir. 2024), affirming fair use, also refused to recognize a purely theoretical licensing market for the very use at bar.

The through-line is stark: a commercial use that depicts a photograph's subject for substantially the same purpose as the original will almost always lose the first factor, and the loss compounds because courts presume cognizable market harm under the fourth factor when a non-transformative commercial use duplicates the entire original. Larry Philpot v. Independent Journal Review, 92 F.4th 252 (4th Cir. 2024). Fair use survives only where the copying objectively conveys a genuinely distinct purpose — educational, critical, or otherwise directed at the work itself.