Fair Use After Warhol: Transformative Purpose, Market Harm, and the Four Factors
By Casey Scott McKay ·
This article explains how the fair use defense codified at Section 107 actually works after Andy Warhol Foundation v. Goldsmith (2023), which recentered the first factor on the specific use, its purpose, its commerciality, and whether the copying was justified. It traces the doctrine from Folsom through Sony, Harper & Row, Campbell, and the transformative-use era that Judge Leval's 1990 article set in motion, then shows what Warhol changed and, just as important, what it left untouched. It works through each of the four statutory factors as courts now apply them, including the revival of factor two, factor three's qualitative "heart of the work" test, and factor four's licensing-market and circularity problems. It covers the parody-satire line that still decides cases, the real differences among the circuits, and the functional-code analysis of Google LLC v. Oracle America (2021). A final part maps the unresolved fair use questions in the generative-AI training cases, from Thomson Reuters and Ross Intelligence to Bartz and Kadrey, identifying throughout the places where the law is genuinely unsettled rather than merely uncomfortable.
IP and Technology > Copyright | Article | Published 17 May 2026 - Updated 19 July 2026 | Casey Scott McKay - marksy.us
Summary. Fair use under 17 U.S.C. § 107 was reshaped in 2023, and most of the advice written before then is now subtly wrong. This article traces the doctrine from Justice Story's 1841 opinion in Folsom v. Marsh through Sony, Harper & Row, and Campbell v. Acuff-Rose to Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), and explains precisely what the Supreme Court changed: the first factor now asks about a particular use, its purpose relative to the original's, its commerciality, and whether the copying was justified. It then works through all four factors as courts apply them today, including the quiet return of factor two, factor three's qualitative test, and factor four's licensing-market circularity. It covers parody versus satire, the genuine differences among the circuits, the functional-code reasoning of Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021), and the unresolved fair use questions running through the generative-AI training litigation. It is an explanation, not a procedure — the step-by-step analysis lives in the companion guide and checklist.
Keywords: fair use · 17 u.s.c. 107 · transformative use · andy warhol foundation v. goldsmith · campbell v. acuff-rose · google v. oracle · four factor test · market harm · licensing market · parody · satire · ai training data · purpose and character of the use · amount and substantiality · nature of the copyrighted work · derivative works · authors guild v. google · copyright defenses
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