Is Vic Muniz Infringing Warhol’s Copyright?

I meant to post on this last Friday, but with the World Cup getting underway (Mexico vs. South Africa to boot), this post was relegated to the Sunday stack.

Anyhow, Ray Dowd, copyright litigator from NYC, posts a good art law question via his Fair Use Friday column, pondering whether artist Vik Muniz’s version of Warhol’s Double Mona Lisa, from 1963, is fair use under copyright law. Muniz’s version, composed of peanut butter and jelly, basically takes Warhol’s composition of the Mona Lisa. Ray wonders:

Is the borrowing of Warhol’s name and arrangement of a PD work ok?  Does the selection of peanut butter and jelly drive the transformative nature of the work?   And would the answer change if Warhol’s work were an entirely original composition NOT based on a public domain work?  And does the number of copies matter?

I’m not sure how much copyright play Warhol would have based solely on the composition, or if Muniz’s version is transformative enough simply because he used my favorite food of all time: peanut butter and jelly (although now I prefer honey over jelly). What I do know, and where I disagree with Ray, is that Muniz’s work is cute and gimmicky, and not a “strikingly original and beautiful masterpiece of 20th Century art.” Check out Ray’s thoughts here.