Warhol v. Goldsmith
598 U. S. ____ (2023) (2023)
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Rule of Law:
Under the first fair use factor, a secondary work's use of a copyrighted original is not fair if it shares substantially the same purpose as the original and is commercial in nature, even if the secondary work adds new expression, meaning, or message.
Facts:
- In 1981, professional photographer Lynn Goldsmith took a series of portrait photographs of the musician Prince.
- In 1984, Goldsmith's agency licensed one of her black-and-white Prince photographs to Vanity Fair magazine 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, which was published in the magazine with a credit to Goldsmith as the source.
- Unbeknownst to Goldsmith, Warhol also created a series of 15 other works based on her photograph, now known as the 'Prince Series'.
- After Prince died in 2016, Vanity Fair's parent company, Condé Nast, contacted the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) to license an image for a special commemorative magazine.
- Condé Nast chose not to reuse the 1984 purple image, but instead licensed a different image from the Prince Series, 'Orange Prince,' from AWF for $10,000.
- Condé Nast published 'Orange Prince' on the cover of its 2016 commemorative magazine, 'The Genius of Prince,' without providing any payment or credit to Goldsmith.
- Goldsmith saw the magazine cover, recognized her photograph as the source, and notified AWF that she believed 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 fair use.
- Goldsmith filed a counterclaim against AWF for copyright infringement.
- The District Court (trial court) granted summary judgment to AWF, holding that its use of the photograph was fair.
- Goldsmith, as the appellant, appealed the decision to the U.S. Court of Appeals for the Second Circuit.
- The Second Circuit (intermediate appellate court) reversed the District Court's judgment, finding that all four fair use factors favored Goldsmith, the appellee.
- AWF, as the petitioner, filed a petition for a writ of certiorari with the U.S. Supreme Court, which was granted on the limited question of the first fair use factor.
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Issue:
Does the Andy Warhol Foundation's commercial licensing of an image derived from Lynn Goldsmith's photograph constitute a fair use under the first statutory factor, 'the purpose and character of the use,' when the licensed image was used for a magazine cover to illustrate a story about the same subject as the original photograph?
Opinions:
Majority - Justice Sotomayor
No. The 'purpose and character' of AWF's use of Goldsmith's photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF's fair use defense. The central question is whether the use 'merely supersedes the objects of the original creation' or adds something new with a 'further purpose or different character.' Here, the specific use at issue—licensing an image to a magazine to illustrate a story about Prince—is substantially the same as the typical commercial purpose of Goldsmith's original photograph. Although the Orange Prince image adds new expression, its use is commercial and serves the same illustrative purpose as the original, thus supplanting the market for Goldsmith's work. The addition of new meaning or message is not dispositive; without a distinct purpose, such as parody or criticism of the original work itself, the commercial nature of a use that shares the original's purpose weighs against fair use.
Concurring - Justice Gorsuch
No. The statutory text of the first fair use factor directs courts to assess 'the purpose and character of the use,' not the artist's subjective intent or the work's aesthetic quality. The law requires a modest inquiry into how and for what reason a person is using a copyrighted work. Here, the undisputed facts show that AWF sought to use its image as a commercial substitute for Goldsmith's photograph, licensing it to the same type of client for the same purpose. Because the purpose and character of the challenged use was commercial competition with the original, the first factor favors Goldsmith.
Dissenting - Justice Kagan
Yes. The first fair use factor should favor AWF because Warhol's work was highly transformative, altering Goldsmith's photograph with 'new expression, meaning, or message' as required by this Court's precedent in Campbell. Warhol did not merely apply an aesthetic filter; he created a new work that commented on the nature of celebrity and transformed Prince from a vulnerable human into a cultural icon. The majority errs by focusing on the commercial nature of the licensing transaction to the exclusion of the work's transformative character. This approach improperly collapses the first factor into the fourth (market effect) and will stifle creativity by preventing artists from building on the work of others, which is the core purpose of fair use.
Analysis:
This decision significantly refines the 'transformative use' doctrine under the first fair use factor, shifting the analysis from the artistic transformation of the work itself to the purpose of the specific commercial use being challenged. The Court clarifies that even if a secondary work is artistically transformative, the first factor will likely weigh against fair use if the work is commercially used for the same fundamental purpose as the original, thereby acting as a market substitute. This holding narrows the scope of the fair use defense for appropriation artists and others creating derivative works, placing greater emphasis on whether the new work competes in the same market as the original. Future cases will require a more granular analysis of the purpose of a secondary use, rather than relying solely on a finding that the work conveys a new meaning or message.
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