Last week, the U.S. Supreme Court issued a 7–2 decision in Andy Warhol Foundation for the Visual Arts, Inc. (“Warhol”) v. Goldsmith, No. 21–869 (May 18, 2023), a copyright case focusing on whether Warhol’s use of Goldsmith’s photograph depicting Prince satisfied the fair use doctrine. Two years ago, the Second Circuit reversed a ruling by the SDNY granting summary judgment in favor of Warhol and concluded that Warhol’s silkscreen images of Prince created using the photograph were not fair use under 17 U.S.C. § 107. Warhol petitioned for certiorari, seeking review only as to the Second Circuit’s ruling on the first fair use factor, which focuses on whether the use is sufficiently transformative.
The Supreme Court affirmed but limited its ruling to the use embodied in Warhol’s recent commercial licensing of one silkscreen image to Conde Nast. The Court began by outlining the contours of copyright transformation and stressed that the degree to which a copying use reflects a distinct purpose or character from that of the original work must be weighed against other considerations, such as commercialism. Here, the Court determined both uses were commercial in nature and shared the same overarching purpose—to present portraits of Prince for magazine stories about Prince. Those facts counseled against fair use.
The majority rejected Warhol’s contention that the silkscreen image had a different meaning and message from the photograph based on added new expression. The Court explained that by reading § 107(1) to accommodate uses that merely add new expression, meaning, or messages to an underlying work, Warhol’s argument disregarded the exclusive right to prepare derivative works enjoyed by copyright owners. Moreover, the Court held, fair use is an objective inquiry based on how the original work is used. It does not query the user’s subjective intent in adding new expression, nor should it turn on any praise or criticism that the use receives from within the art community. While Warhol may have commented on the “dehumanizing nature” of Prince’s celebrity in the silkscreen image, that commentary was untethered from Goldsmith’s actual photograph. Ultimately, the Court concluded, the commercial nature of Warhol’s use loomed larger than its transformation.
Justices Kagan and Roberts entered a dissenting opinion that criticized the majority’s doctrinal shift in removing the “breathing space” for artists to use existing works to make fundamentally new ones, thereby stifling rather than fostering creativity.