Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith
598 US 508 (2023)
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Rule of Law:
When a secondary work's commercial use shares substantially the same purpose as the original copyrighted work, the first fair use factor is likely to weigh against a finding of fair use, even if the secondary work adds new expression, meaning, or message.
Facts:
- In 1981, professional photographer Lynn Goldsmith was commissioned by Newsweek to photograph the musician Prince.
- In 1984, Goldsmith licensed one of her black-and-white Prince portraits to Vanity Fair for a 'one time' use as an 'artist reference for an illustration.'
- Vanity Fair hired artist Andy Warhol, who used Goldsmith's photograph to create a purple silkscreen portrait of Prince that appeared in the magazine.
- Unbeknownst to Goldsmith, Warhol created a series of 15 additional works based on her photograph, now known as the 'Prince Series.'
- In 2016, after Prince's death, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of the works from the Prince Series, 'Orange Prince,' to Condé Nast for $10,000.
- Condé Nast published the 'Orange Prince' image on the cover of a special commemorative magazine about Prince's life.
- Goldsmith saw the Condé Nast magazine cover and learned of the existence of the Prince Series for the first time.
- Goldsmith notified AWF of her belief that it had infringed her copyright.
Procedural Posture:
- The Andy Warhol Foundation (AWF) sued Lynn Goldsmith in the U.S. District Court for the Southern District of New York, seeking a declaratory judgment of noninfringement or, alternatively, fair use.
- Goldsmith filed a counterclaim for copyright infringement.
- The District Court granted summary judgment for AWF, finding that its use of Goldsmith's photograph was fair use.
- Goldsmith, as appellant, appealed to the U.S. Court of Appeals for the Second Circuit.
- The Second Circuit reversed the district court's decision, finding that all four fair use factors favored Goldsmith, the appellee.
- AWF, as petitioner, filed a petition for a writ of certiorari to the U.S. Supreme Court, which was granted.
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Issue:
Does the first fair use factor, 'the purpose and character of the use,' weigh in favor of the Andy Warhol Foundation's commercial licensing of an image from its 'Prince Series' to a magazine, where the original photograph it was based on is also licensed for magazine publication?
Opinions:
Majority - Justice Sotomayor
No, the first fair use factor weighs in Goldsmith's favor. The central question is whether the use has a further purpose or different character from the original, which is a matter of degree weighed against other considerations like commercialism. Here, AWF's licensing of Orange Prince to Condé Nast shared substantially the same purpose as Goldsmith's photograph: both are portraits of Prince used to illustrate stories about Prince in magazines. This commercial use superseded the objects of the original work rather than serving a distinct purpose like parody or criticism that targets the original. While Orange Prince adds new expression, meaning, or message, this is not dispositive; an overbroad concept of transformative use would swallow the copyright owner's exclusive right to prepare derivative works. Given the highly similar commercial purpose, the first factor favors the original copyright holder, Goldsmith.
Concurring - Justice Gorsuch
No, the first fair use factor favors Goldsmith. The statutory text requires courts to focus on the 'purpose and character of the use' itself, not the artistic purpose or aesthetic quality of the resulting work. The law does not ask judges to be art critics. Here, the challenged use was AWF's licensing of its image to a magazine as a commercial substitute for Goldsmith's photograph. Because the purpose and character of the Foundation's use and Goldsmith's protected use overlap so completely, the first factor weighs against a finding of fair use.
Dissenting - Justice Kagan
Yes, the first fair use factor should weigh in AWF's favor. The majority wrongly focuses on the commercial nature of the licensing transaction rather than the transformative character of the artwork itself. Warhol's work dramatically altered the original photograph with new expression, meaning, and message, transforming a realistic portrait into a commentary on celebrity culture. This is precisely the kind of creative progress that the fair use doctrine is meant to protect. By ignoring the transformative nature of the work and equating the purposes because both were licensed to magazines, the majority stifles creativity and misunderstands that all art builds on what came before.
Analysis:
This decision significantly refines the 'transformative use' doctrine under the first fair use factor, shifting the focus from a work's new aesthetic or message to the specific purpose of the challenged use. The ruling curtails the defense for derivative works that, despite being artistically transformative, compete in the same commercial market as the original. It establishes that a secondary use sharing the same essential purpose as the original is unlikely to be considered fair, especially when commercial, unless it has a compelling justification like parody or direct criticism. This precedent will likely make it more difficult for appropriation artists and other creators to claim fair use for commercially licensed works that occupy the same market as their sources.
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