Copyright Case

Andy Warhol Foundation v. Goldsmith

In April 2017, the Andy Warhol Foundation (AWF) sued photographer Lynn Goldsmith for a declaration of non-infringement over a series of 15 silkscreen prints and pencil illustrations that the late appropriation artist, Andy Warhol, based, without authorization, on a photographic portrait of Prince taken by Goldsmith in 1981. Goldsmith had originally licensed her photograph to Vanity Fair as an artist reference. Vanity Fair then commissioned Warhol to create a piece based on the photograph. However, without Goldsmith’s knowledge, Warhol also created the 15 silkscreen prints known as the “Prince Series,” using the same photograph. Goldsmith learned about the series in 2016, shortly after Prince’s death.

In July 2019, the district court ruled in favor of AWF on its fair use defense, relying largely on their conclusion that Warhol’s use of Goldsmith’s photograph was transformative because The Prince Series portrayed the musician as an “iconic, larger-than-life figure,” whereas Goldsmith’s photograph portrayed Prince as a “vulnerable human being.” Goldsmith appealed in August 2019.

In August 2021, the Second Circuit Court of Appeals reversed the district court and ruled in favor of Goldsmith on all four fair use factors. On the first factor, the court stated that the lower court had misapplied the “transformative use” test and stressed that aesthetic changes to a protected work cannot by themselves constitute a transformative purpose weighing in favor of fair use. Rather, the secondary work must “reasonably be perceived as embodying an entirely distinct artistic purpose.” The court also weighed the other factors in Goldsmith’s favor; on the second factor, noting the photograph’s unpublished status and high creativity; on the third factor, noting that Warhol copied much of the copyrightable expressions in the photograph; and on the fourth factor, noting that the Warhol works could harm the existing derivative markets for Goldsmith’s photographs. 

In December 2021, AWF challenged the Second Circuit’s application of the transformative use test in its petition for Supreme Court review. The question presented by AWF was: “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the Second Circuit has held)?”

On May 18, 2023, the Supreme Court, in a 7-2 opinion written by Justice Sonia Sotomayor, found that the purpose and character of the AWF’s use of Lynn Goldsmith’s photograph in the licensed “Orange Prince” silkscreen to Condé Nast did not favor a fair use defense under the first fair use factor. The landmark decision reaffirms a critical tenet of the fair use doctrine—that whether a use is transformative not only doesn’t control a fair use determination, but that it also doesn’t control a factor one analysis. The decision also reiterated that fair use is an objective inquiry, and that different meaning and message in assessing transformative use “cannot turn merely on the stated of perceived intent of the artist of the meaning or impression that a critic—for that matter, a judge—draws from the work.” Additionally, the Court explained that the degree of transformation required to meet the threshold of transformativeness under the fair use factor cannot so broad that it encroaches upon the derivative right under Section 106 of the Copyright Act.

Procedural History

Status: Decided by the Supreme Court

Supreme Court (2023)

Amicus Briefs

In support of the petitioner (Andy Warhol Foundation)

In support of neither party

In support of Respondent (Lynn Goldsmith)

Cert Petition (2021)

Second Circuit Court of Appeals

District Court for the Southern District of New York

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