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Copyright Fair Use After Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith

Updated: Jul 6, 2023


Left: Lynn Goldsmith’s portrait of Prince (1981) (Left), Right: Andy Warhol silkscreen (Condé Nast Magazine, 2016)

Last month, the Supreme Court issued its highly anticipated decision in the dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation. Affirming a ruling by the Court of Appeals for the Second Circuit, the Court held that the first factor of the fair analysis favored Goldsmith. Read on for a summary of the case and how it will likely impact fair use analysis.


Background


The case involved a silkscreen that Warhol created, without authorization, from a photograph of Prince taken by Lynn Goldsmith. Goldsmith had previously granted Vanity Fair a one-time license to use the photograph as an “artist reference.” In addition to the image Vanity Fair published, Warhol created 15 other silkscreens. After Prince died, the Foundation authorized Condé Nast to publish one of them on the cover of a magazine to illustrate an article about Prince’s life.


Transformative Uses and Derivative Works


The issue before the Supreme Court was limited to whether the first fair use factor, which is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes,” favored the Foundation. As explained in a previous post, courts have increasingly evaluated the first fair use factor based on the degree to which a second work transforms the original, by adding a new meaning or message, for example. Condé Nast argued that the work was highly transformative since Warhol’s version conveyed Prince in a different light than the Goldsmith photograph. Goldsmith argued that the work was not transformative because it served the same purpose as her photograph, which was to depict Prince.


In a split decision, the Supreme Court agreed with Goldsmith. The majority opinion, written by Justice Sotomayor, focused heavily on the fact that both the original photograph and the Warhol work had been licensed to magazines to illustrate articles about Prince. The majority explained that the degree of transformation of a work must go beyond that required to qualify as a derivative work. Just as parodies need to refer to original works in order to comment on them, transformative uses need to justify their use of original works. The majority also agreed with the Second Circuit that finding the work transformative merely because it was recognizable as a Warhol would improperly create a “celebrity-plagiarist privilege.”


Justice Gorsuch wrote a concurring opinion, joined by Justice Jackson, which agreed with majority but pointed out that other uses of Warhol’s works, such as display in a non-profit museum or a for profit book commenting on twentieth century art might constitute fair use. The dissent, written by Justice Kagan and joined by Chief Justice Roberts, argued vigorously that the work was in fact transformative and that even if other factors favored Goldsmith, factor one should favor the Foundation.


Key Takeaways


The decision is an important ruling on fair use. While fair use will likely remain a “gray” area of the law that is notoriously difficult to predict, the decision appears to reign in, at least in part, the reliance on whether an accused work is “transformative” in fair use analysis. The focus on the nature of the use by the majority and concurring opinion may also prove instructive to potential copyright plaintiffs in choosing which cases to bring against which parties.


If you have questions about copyright litigation or fair use analysis, feel free to contact us.



Nancy J. Mertzel

Mertzel Law PLLC

1204 Broadway, 4th Floor

New York, NY, 10001

(646) 965-6900

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