The United States Supreme Court ruled in favor of photographer Lynn Goldsmith in her copyright lawsuit against the Andy Warhol Foundation for the Visual Arts concerning Andy Warhol’s Prince Series prints. The lawsuit settles a split among appeals courts concerning the fair use defense in copyright cases.
The Andy Warhol Foundation did not challenge the lower court’s determination that the second, third, and fourth fair use factors favor Goldsmith. As such, the Supreme Court discussed only 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 education purposes.” The Court found that the first fair use factor favors Goldsmith, highlighting two key points. “First, the fact that a use is commercial as opposed to nonprofit is an additional ‘element of the first factor’. . . The commercial nature of the use is not dispositive. . . [b]ut it is relevant.” The court then highlighted that the first fair use factor “also relates to the justification for the use.” For example, “a use may be justified because copying is reasonably necessary to achieve the user’s new purpose,” citing parody as an example in which copying is required to make its point. The court emphasized that the question of justification is one of degree, stating that “the degree of difference must be balanced against the commercial nature of the use. 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.”
The Court then considered the use in question – the alleged infringement whereby the Andy Warhol Foundation provided a commercial license to Condé Nast. The Court found that “the purpose of the [infringing] image is substantially the same as that of Goldsmith’s photograph” since both are portraits of Prince used in magazines. In addition, the use in question is also commercial use. The Court then held that “although a use’s transformativeness may outweigh its commercial character, here, both elements point in the same direction [against fair use]. The foregoing does not mean, however, that derivative works borrowing heavily from an original cannot be fair use.”
As to the Andy Warhol Foundation’s contention that “the purpose and character of its use of Goldsmith’s photograph weighs in favor of fair use because [the use] has a new meaning or message,” i.e. the use is transformative, the Court disagreed. “Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message. Otherwise, ‘transformative use’ would swallow the copyright owner’s exclusive rights to prepare derivative works.” The Court cited musical arrangements, film and stage adaptations, sequels, and spinoffs as examples where allowing transformative use to justify fair use would overtake a copyright owner’s exclusive right to prepare derivative works. The Court found 2 Live Crew’s case in Campbell to be instructive. “[M]eaning or message was simply relevant to whether the new use served a purpose distinct from the original, or instead superseded its objects. That was, and is the ‘central’ question under the first factor.”
The Court held that the degree of difference in purpose between the alleged infringement and Goldsmith’s photograph “is not enough for the first factor to favor [the Andy Warhol Foundation], given the specific context of the use.” The Court considered the possible ramifications in holding otherwise. “As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations.”
As to the Andy Warhol Foundation’s claim that the Prince Series “comment[s] on the ‘dehumanizing nature’ and ‘effects’ of celebrity,” the Court found that the asserted commentary has no critical bearing on Goldsmith’s photograph. Rather, the commercial nature of the use looms larger. The Court quoted Authors Guild, Inc. v. Google, Inc. to state “[a] secondary author is not necessarily at liberty to make wholesale takings of the original author’s expression merely because of how well the original author’s expression would convey the secondary author’s different message.”
The majority opinion, written by Justice Sonia Sotomayor, criticized the dissenting opinion. “[The dissenting opinion] focuses on Campbell‘s paraphrase, yet ignores the rest of that decision’s careful reasoning. Indeed, upon reading the dissent, someone might be surprised to learn that Campbell was about parody at all.” Justice Sotomayor went on to state that “[t]he objective meaning or message of 2 Live Crew’s song was relevant to this inquiry into the reasons for copying, but any ‘new expression, meaning, or message’ was not the test.” Justice Sotomayor further criticized the dissenting opinion because it offers (1) “no theory of the relationship between transformative uses of original works and derivative works that transform originals;” (2) “[n]o reason why [the Andy Warhol Foundation] was justified in using Goldsmith’s original work in this specific instance;” and (3) “no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor.” Justice Sotomayor went on to point out that “[the dissenting opinion’s] single-minded focus on the value of copying ignores the value of original works. It ignores the statute’s focus on the specific use alleged to be infringing. . . It waves away the statute’s concern for derivative works. . . It fails to appreciate Campbell’s nuance. . . And it disregards this Court’s repeated emphasis on justification.”
Justice Sotomayor was joined in the majority by Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett, and Jackson. Justice Gorsuch penned a concurring opinion joined by Justice Jackson. Justice Kagan filed a dissenting opinion joined by Chief Justice Roberts. The case settles a dispute between the Ninth Circuit Court of Appeals and the Second Circuit Court of Appeals concerning the fair use defense.
Supreme Court sides against Andy Warhol Foundation in copyright infringement case, NPR (May 18, 2023)
Supreme Court Opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith
U.S. Supreme Court Docket in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith
U.S. Government Files Amicus Brief Supporting Photographer in Andy Warhol’s Prince Series Prints Copyright Case, Justia Legal News (August 17, 2022)
U.S. Supreme Court to Settle Copyright Dispute Over Andy Warhol’s Prince Series Prints, Justia Legal News (March 30, 2022)
Second Circuit Court of Appeals Rules That Andy Warhol’s Prince Series Prints Are Not Transformative Fair Use, Justia Legal News (March 31, 2021)
Photo Credit: theincomparable_rj / Shutterstock.com