Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith

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Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith

143 S. Ct. 1258 (2023)

Issue(s):

Fair Use

Overview

A magazine licensed a photograph of musical artist Prince by noted rock-and-roll photographer Lynn Goldsmith to be used as a reference image by Andy Warhol. From that reference model, Warhol created a silkscreen entitled “Purple Prince” to illustrate an article in the magazine. At some point, Warhol created additional prints and pencil sketches also based on the Goldsmith photograph that became known as the Prince Series. Warhol’s estate (“the Foundation”) later licensed one of those pieces, “Orange Prince,” for use on a magazine cover without notifying or compensating Goldsmith. Goldsmith sent a cease and desist letter to the Foundation, which then sought a declaratory judgment of noninfringement. The District Court granted summary judgment to the Foundation, finding that Warhol’s use of Goldsmith’s photograph was transformative, conveying a different message and aesthetic than the original image. The Second Circuit reversed, holding that all four factors used in assessing the viability of a fair use defense weighed against the Foundation. The Supreme Court affirmed the Second Circuit, concluding that the first fair use factor (the only issue on appeal) weighed in Goldsmith’s favor because Orange Prince and Goldsmith’s photograph shared substantially the same commercial purpose: illustrating a magazine story about Prince.

Case Summary

The only issue on appeal was the first fair use factor which looks at the purpose and character of the use and whether the use was commercial or non-profit. Here, the Court found that the purpose of the use in question—to illustrate a magazine story about Prince—was substantially the same as Goldsmith’s photograph, and that the use was commercial. Taken together, the purpose and commerciality of the use of Orange Prince “counsel against fair use.”

The Court wrote that, while relevant, merely the presence of new expression, meaning, or message cannot constitute transformative use alone; otherwise, transformative use would “swallow” the original copyright holder’s exclusive right to prepare derivative works. Also, a work’s meaning should only be considered to the extent necessary to determine if the use’s purpose is distinct from the original: for example, if the use critiques the original. This analysis differed from lower courts’ interpretations of the first factor which had heavily relied on an examination of the transformativeness of the secondary work.

Justice Gorsuch’s concurrence underscored the highly contextual nature of fair use. While the Court’s analysis of the first fair use factor weighs against the Foundation here, a different use—for example, Gorsuchn wrote, if Orange Prince were shown in a nonprofit museum or a for-profit book commenting on 20th-century art—may have led to a different outcome.

Justice Kagan in her dissent argued that transformation should play a larger role in the fair use analysis, and accordingly found that because Orange Prince was “materially distinct” from Goldsmith’s photograph in nearly all of its “aesthetic traits,” it should be deemed a sufficiently transformative, fair use. Warhol, Justice Kagan writes, “is the very embodiment of transformative copying.”

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Case Commentary

Terry Hart on AWF v. Goldsmith and Justification (Copyhype)

Roy Kaufman on The Link Between AI and Warhol (Scholarly Kitchen)

Jane Ginsburg on In the Courts: The US Supreme Court’s Warhol decision revisits the boundaries of fair use (WIPO Magazine)

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