Artists Beware! Supreme Court Narrows Fair Use Defense In Andy Warhol Copyright Ruling.
On May 18, 2023, the United States Supreme Court ruled that Andy Warhol’s pop rendition of a photograph of the artist Prince was not immunized from a claim of copyright infringement by the fair use defense. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Number 21-869 (2023). The Court affirmed the holding of the US Court of Appeals for the Second Circuit that the purpose and character of AWF’s use of Goldsmith’s copyrighted photograph weighed against AWF’s fair use defense.
In 1981, photographer Lynn Goldsmith took a photograph of Prince, which she licensed to Vanity Fair for the “one-time” limited purpose of serving as an “artist reference for an illustration.” Vanity Fair then hired Andy Warhol, who created a silkscreen portrait of Prince based on Goldsmith’s photograph. Vanity Fair used Warhol’s silkscreen portrait to accompany an article it published in 1984 about Prince, and credited Goldsmith for the source photograph. Unbeknownst to Goldsmith, Warhol also created fifteen other images based on Goldsmith’s photograph, now known as the “Prince Series.”
A dispute arose in 2016, when Vanity Fair’s parent company, Condé Nast, published an image from the Prince Series, titled “Orange Prince,” on the cover of a magazine pursuant to a commercial license granted to Condé Nast by AWF without compensation or notice to Goldsmith. Goldsmith notified AWF that the use of the “Orange Prince” image constituted copyright infringement, and AWF sued for a declaratory judgment of noninfringement or, in the alternative, fair use. The District Court for the Southern District of New York granted summary judgment to AWF on its fair use defense and the Court of Appeals for the Second Circuit reversed, finding that the four fair use factors favored Goldsmith.
The Court only considered the sole issue of whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” weighed in favor of AWF, holding that it weighed against AWF.
AWF argued that the purpose of its use of Orange Prince was transformative because it conveyed a “different meaning or message.” However, the Court found that while the first factor considers whether “an allegedly infringing use has a further purpose or different character,” the existence of a new expression, meaning, or message is not dispositive. Because Goldsmith’s photograph and AWF’s Orange Prince were both being used to depict Prince in a magazine story about Prince, the Court held that the two works shared substantially the same purpose and that Orange Prince’s new expression was not enough to tilt the first factor in AWF’s favor. The Court further explained: “if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying.” In this case, AWF had “no persuasive justification” for its copying.
The Court’s holding is narrow and limited to the licensing issue between AWF and Goldsmith. As the Court “expresse[d] no opinion as to the creation, display, or sale of any of the original Prince Series works,” case-by-case analysis remains required to determine the applicability of the fair use defense.
The decision may have an impact on analyzing the fair use defense in cases involving AI-generated artworks, given that many AI-generated artworks “borrow” images from other sources. The courts will likely focus on whether the purpose and character of the AI generated secondary work is different from the original work, rather than whether the secondary work added a new expression or meaning to the original work.
You can download the full Supreme Court decision here.
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