Publicity Rights After Warhol

Mark Bartholomew - University at Buffalo School of Law
Vol. 59
February 2026
Page 1285

Andy Warhol has been proclaimed the most important artist of the twentieth century, but his influence extends farther than the art world. Given his renown, judges have cited his work, including his reworkings of celebrity photographs, as quintessentially protected expression. But this may be changing with the Supreme Court’s recent decision in Andy Warhol Foundation v. Goldsmith, which curtails the ability of creators to claim “transformative” fair use when they borrow aspects of a copyrighted work for commercial purposes. Moving beyond the decision’s copyright implications, this Article explores its potential ripple effect on publicity rights law. Although publicity rights doctrine borrowed the transformative test from copyright fair use, the Warhol Foundation ruling prompts a critical question: should courts apply this new, restrictive interpretation to publicity rights? This Article argues that transformativeness in publicity rights should remain a distinct, independently evolving legal concept, preserving its unique balance between a property right in one’s identity and First Amendment freedoms.

View Full Article