U.S. Supreme Court Rules Against Andy Warhol’s Foundation in Copyright Case
By Gabrielle Dubilier, Neer McD Legal Intern
On Thursday May 18, 2023, the U.S. Supreme Court ruled 7-2 in favor of photographer Lynn Goldsmith in a copyright infringement battle with the foundation associated with pop artist Andy Warhol. In the opinion authored by Justice Sonia Sotomayor, the Court ruled that Warhol’s silkscreens were not sufficiently transformative and thus did not constitute “fair use” under copyright law. “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” said Sotomayor.
Goldsmith was hired by Newsweek magazine in 1981 to photograph the up-and-coming musician at that time, Prince. While she retained copyright of the photo, in 1984 she granted a one-time license of the same photo to Vanity Fair to serve as an artist reference for an illustration to be published in the magazine. Warhol was the artist Vanity Fair hired to create this illustration. Thus the illustration of Prince with a purple face was born. Despite the one-time license, Warhol went on to create 15 other works in different colors based off of Goldsmith's photo, titled the Prince Series.
When Warhol passed away in 1987, his foundation, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF), retained the copyrights to his illustrations. Condé Nast (Vanity Fair’s parent company) sought a license from AWF to reuse the Prince image for a special edition magazine to commemorate him. Condé Nast decided to go with the orange Prince (“Orange Prince”) version rather than the original purple Prince version. Goldsmith became aware of the use of her image and claimed copyright infringement. AWF argued that the Orange Prince falls within fair use and “contends that the Prince Series works are ‘transformative,’ and that the first factor therefore weighs in its favor, because the works convey a different meaning or message than the photograph,” said Sotomayor. Determining whether a work falls within fair use requires an analysis of the following four prong test:
“the purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.”
Focusing on the first prong of the fair use test, the Court stated that if the original work and secondary work share the same or highly similar purposes, the first fair use factor is likely to weigh against fair use. The Court concluded that the purpose of Goldsmith’s original photograph and Condé Nast’s special edition featuring Orange Prince was one-in-the-same: portraits of Prince being used in magazines for articles about Prince. Sotomayor wrote, “taken together, these two elements–that Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature–counsel against fair use, absent some other justification for copy.”
The Court goes on to say that this ruling does not necessarily mean that other works that heavily borrow from original works do not meet the fair use standard and that this is a case-by-case situation. Sotomayor said that even other works by Warhol warranted a different analysis and showcased the example of comparing this case to Warhol’s soup can series that “uses Campbell’s copyrighted work for an artistic commentary on consumerism.”
Justice Elena Kagan wrote a dissenting opinion, joined by Chief Justice John Roberts, criticizing the majority’s ruling. Kagan said the majority mistakenly focused on Warhol’s commercial arrangement with the magazine, rather than his transformative rendition of the image. She dismissed Sotomayor’s attempt to distinguish Warhol’s soup can series and stated that this ruling “hampers creative progress and undermines creative freedom.”
You can download the full Supreme Court decision here.
Citing: Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. ____ (May 18, 2023); 17 U.S.C. §107.
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