May 18, 2023

Supreme Court Decides Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al.

On May 18, 2023, the Supreme Court of the United States decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al., No. 21-869, holding that the “purpose and character” of the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF) commercial use of a Warhol depiction of the artist Prince, which was derived from Lynn Goldsmith’s photograph, did not favor a fair use defense within the meaning of Section 107(1) of the Copyright Act. 

The case arose from an orange silkscreen portrait of the musician Prince created by pop artist Andy Warhol titled “Orange Prince.” That picture is shown here

Warhol derived the piece from a copyrighted photograph taken in 1981 by the famous photographer Lynn Goldsmith. In 1984, Goldsmith gave the magazine Vanity Fair permission to use the photo, for “one time” only, to commission a purple silkscreen photo of Prince for its November 1984 issue. Goldsmith did not know that Warhol had in fact created 15 other pieces based on the photo, including Orange Prince. 

After Prince died in 2016, Vanity Fair’s parent company, Condé Nast, purchased a license from AWF to publish Orange Prince in a special magazine commemorating the musician. Goldsmith received no payment or credit for Condé Nast’s use of Orange Prince. That prompted copyright litigation between AWF and Goldsmith in the U.S. District Court for the Southern District of New York. At summary judgment, the district court ruled in favor of AWF on the defense of fair use. The Second Circuit reversed, holding the fair use factors under Section 107 of the Copyright Act weighed in favor of Goldsmith. 

The Supreme Court granted certiorari and was asked to decide only whether the first fair use factor under Section 107 of the Copyright Act — the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” — weighed in Goldsmith’s favor, or in AWF’s. The Court held that this first “fair use” factor weighed in favor of Goldsmith and affirmed the Second Circuit. 

The Court explained that if an original work and secondary use share a similar purpose and the secondary use is commercial, the factor is likely to weigh against fair use. Here, while Orange Prince adds a new expression to Goldsmith’s photograph, the original photograph and Warhol’s piece share similar purpose — to depict Prince in magazine stories. 

The Court also rejected AWF’s argument that Orange Prince had a different meaning or message than Goldsmith’s photograph such that its use was “transformative.” The Court explained that while a secondary work’s meaning is relevant to determining its purpose, a new expression does not automatically amount to transformative use. Here, Orange Prince was simply a new expression of the photograph. Both images were used to illustrate Prince in magazine articles about the artist and any difference in perspective of the articles did not change the image’s meaning enough to amount to transformative use. The first fair use factor thus weighed in favor of Goldsmith. 

Justice Sotomayor delivered the opinion of the Court, which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson joined. Justice Gorsuch filed a concurring opinion, which Justice Jackson joined. Justice Kagan filed a dissenting opinion, which Chief Justice Roberts joined. 

All opinions include multiple visually interesting depictions of wide variety and origin, and readers are encouraged to view the Court’s opinions for their visual appeal.

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