Supreme Court Rules Andy Warhol Foundation Violates Copyright in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Written June 15, 2023
On May 18, 2023, the Supreme Court ruled that the Andy Warhol Foundation (AWF) violated Lynn Goldsmith’s copyright. As advocated in AIPLA’s Amicus Brief filed on June 17, 2022, the Court confirmed that a fair use analysis involves weighing all the statutory factors, and that a fair use analysis is an objective inquiry. To read the opinion of the Court, please click here.
In 1981, photographer Lynn Goldsmith took a series of photos of the musician Prince at the start of his career. In 1984, as Prince’s career took off, Vanity Fair licensed a single black and white photo from the series for a planned feature for use as an artist’s reference and commissioned the artist Andy Warhol to create a painting. In the subsequent three years leading up to Warhol’s death in 1987, he created 15 variations of the Prince portrait that became known as the Prince Series. Goldsmith claimed to have learned the existence of the series when she saw the works published in Conde Nast’s printed tribute to the singer following his passing in 2016. Goldsmith subsequently accused the Andy Warhol Foundation of copyright infringement.
In 2017, AWF sued Goldsmith seeking a declaratory judgment that the Prince Series did not infringe Goldsmith’s copyright because the works in the series were “transformative.” Goldsmith counterclaimed for copyright infringement. The District Court granted summary judgment in favor of AWF based on fair use and dismissed the counterclaim. On appeal to the Second Circuit, Goldsmith claimed the lower court’s fair use analysis was flawed; the Second Circuit agreed and further found that Lynn’s photo and the Prince Series were substantially similar as a matter of law. The Second Circuit reversed and remanded the case for further proceedings. AWF filed a petition for writ of certiorari on December 9, 2021, which was granted on March 28, 2022. The question as presented to the Supreme Court was “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).”
OPINION OF THE COURT
Justice Sotomayor delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson joined.
The majority affirmed the lower court's ruling that the Andy Warhol Foundation’s (AWF) 15 subsequent images based on Goldsmith's 1981 photo were not immune from her copyright infringement lawsuit. AWF had asserted that the Prince series transformed Goldsmith’s original photo enough that it was “fair use” under copyright law. The parties did not dispute that the works in question were substantially similar and that three of the four statutory fair use factors favored Goldsmith. Thus, the Court focused on the first fair use factor, the “purpose and character of the use.” The Court determined that even though the AWF work added expression to the copyrighted work, the first fair use factor also weighed in Goldsmith’s favor. Citing its recent Google LLC v. Oracle America, Inc., decision, the Court noted that a fair use analysis requires judicial balancing of the four factors. The first factor “considers the reasons for, and nature of, the copier’s use of an original work. The ‘central’ question it asks is ‘whether the new work merely “supersede[s] the objects” of the original creation . . . (“supplanting” the original), or instead adds something new, with a further purpose or different character.” Whether the copier’s work is commercial is an added element of the “purpose and character of use” factor. In addition, the justification for the copier’s use is important, i.e., “a use that has a distinct purpose is justified because it furthers the goal of copyright.” By contrast, a use that shares the same purpose as the copyrighted work “undermines” the purpose of copyright. The Court concluded that, “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.”
Focusing only on whether AWF’s commercial licensing of Orange Prince to Condé Nast could be a fair use, the Court found that its use was commercial and shared substantially the same purpose as the copyrighted work, and that fair use did not apply (and there was no compelling justification to establish otherwise). While AWF argued that the Warhol silkscreen image created a new meaning or message, the Supreme Court disagreed. In addressing Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994), the Court stated that Campbell “cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message.” To do so would mean that “’transformative use’ would swallow the copyright owner’s exclusive right to prepare derivative works.” Here, the purpose of the use, illustrating a magazine about Prince with a portrait of Prince, was not different enough for the first fair use factor to favor AWF. Justice Sotomayor wrote that “Goldsmith's original words...are entitled to copyright protection, even against famous artists,” and “...to hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals," notably for commercial publication.
After reviewing relevant case law, the Court ruled that considering the four statutory fair use factors may not “be treated in isolation, one from another,” the Court affirms the Court of Appeals’ decision that the first factor (“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” §107(1)) favors Goldsmith’s claim of copyright infringement.
Justice Gorsuch filed a concurring opinion, joined by Justice Jackson. Justice Gorsuch noted that the question before the Court was one of statutory interpretation, concerning the “meaning of one of four factors Congress has instructed courts to consult when a party invokes the affirmative defense of ‘fair use’ to a claim of copyright infringement,” and that the parties involved fundamentally disagree which “purpose” and “character” counts. Because the purpose and character of AWF’s use of the photograph aligned so closely to Goldsmith’s purpose and character, Justice Gorsuch agrees that the first statutory factor does not support a fair-use affirmative defense.
Justice Gorsuch rejects AWF’s claim that their depiction of Prince made him a “larger-than-life” icon while Goldsmith’s photo portrays a more vulnerable character. Gorsuch writes, that “happily, the law does not require judges to tangle with questions so far beyond our competence...the first fair-use factor requires courts to assess only whether the purpose and character of the challenged use is the same as a protected use,” which Gorsuch believes it does.
Lastly, Gorsuch notes that while the interpretation of the first fair-use factor does not favor AWF in this case, it may in other cases.
Justice Kagan filed a dissenting opinion, joined by Chief Justice Roberts.
Justice Kagan took issue with the majority’s description of Warhol’s work as a “modest alteration" noting that Warhol was known for “reframed and reformulated—in a word, transformed—work by others.” Kagan wrote that recently the Court used Warhol paintings as an example of “copying use that adds something new and important”—of a use that is “transformative,” pointing toward a fair use finding.
The dissent argues that fair use’s first factor provides “breathing space” for artists to transform existing work. Kagan writes that in “remaking that factor, and thus constricting fair use’s boundaries, the majority hampers creative progress...”