Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), is a U.S. Supreme Court case dealing with transformative use , a component of fair use , under U.S. copyright law . At issue was the _Prince Series _ created by Andy Warhol based on a photograph of the musician Prince by Lynn Goldsmith . It held Warhol's changes were insufficiently transformative to fall within fair use for commercial purposes, resolving an issue arising from a split between the Second and Ninth circuits among others.

Goldsmith had taken her photograph in 1981 on assignment for _Newsweek _ and retained copyright on it afterwards; it was not published. Three years later, _Vanity Fair _ licensed the image for Andy Warhol to use as a reference for a silkscreen illustration of Prince to be published, by agreement with Goldsmith, only once, with her credited. But Warhol used the image as the basis for his Prince Series without asking or notifying Goldsmith; she only learned of the images' existence when Vanity Fair's publisher, Condé Nast , used one as the cover image, with no attribution, for a special tribute magazine to Prince after his death in 2016, which was licensed by the Andy Warhol Foundation (AWF). Litigation ensued in federal court between Goldsmith and the Warhol Foundation, which has administered the artist's works since his death, over whether Warhol's reuse of the image had infringed her copyright. The Southern District of New York sided with the foundation in 2019, but was reversed by the Second Circuit two years later.

The Second Circuit's reversal relied in part on a "clarification" of its 2013 holding in the very similar case of _Cariou v. Prince _ (the photographer Patrick Cariou versus the painter Richard Prince ), to the effect that a secondary work was not necessarily transformative of the original just because it was aesthetically different; it must also serve a distinguishably different artistic purpose, which Warhol's work, when used on a magazine cover to depict Prince, did not. Legal commentators, including _Nimmer on Copyright _ and another appellate circuit, had criticized Cariou in particular and the Second Circuit in general as giving too great a weight to transformative use in determining fair use.

In May 2023, the Court ruled 7–2 that AWF's use of Goldsmith's photographs was not protected by fair use. Justice Sonia Sotomayor wrote for the majority that the works shared a similar purpose in the depiction of Prince in magazine articles, emphasizing the commercial nature of the product. Her opinion contained many footnotes disparaging Justice Elena Kagan 's combative dissent, which was equally harsh on the majority as she defended the value of transformation in art. Commentators in the art world feared for the future of appropriation art , popular with artists inspired by Warhol like Richard Prince and Jeff Koons , if artists were to be deterred from creating works by fears of litigation or prohibitive license fees.

Contents

• 1 Background

  • 1.1 Fair use

  • 1.2 Transformative use

  • 1.3 Appropriation art and copyright

    • 1.3.1 Cariou v. Prince

• 2 Underlying dispute

• 3 Preliminary rulings

  • 3.1 District court

  • 3.2 Appeals court

  • 3.3 Amended decision after rehearing

  • 3.4 Substantial similarity argument

  • 3.5 Jacobs concurrence

• 4 Supreme Court

  • 4.1 Before the Court

  • 4.2 Decision

    • 4.2.1 Majority

    • 4.2.2 Concurrence

    • 4.2.3 Dissent

• 5 On remand

• 6 Reaction

• 7 See also

• 8 Notes

• 9 References

• 10 External links

Background

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Fair use

(https://en.wikipedia.org/w/index.php?title=Andy_Warhol_Foundation_for_the_Visual_Arts,_Inc._v._Goldsmith&action=edit&section=2 "Edit section: Fair use")

Justice Joseph Story, 1844

Main article: Fair use

Fair use , the unlicensed use of material copyrighted by others in secondary works, was long accepted under English common law , but not well defined. Within U.S. copyright law , federal judge Joseph Story , later a Supreme Court justice, identified three aspects of fair use to be judged by a court in an 1841 case, _Folsom v. Marsh _, holding that the republication of some of George Washington 's letters by a second writer was infringing:

• the "nature and objects of the selections made",
• the "quantity and value of the materials used", and
• the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work"

After over a century of remaining in case law , Congress codified fair use in the Copyright Act of 1976 . Story's three factors became four, with the second split into the nature of the original work, and the amount of it reused. In 1985 the Supreme Court gave courts guidance on how to apply them in _Harper & Row v. Nation Enterprises _, a case stemming from the unauthorized publication of the leaked memoirs of former president Gerald R. Ford . The Court held that fair use did not apply to this use of copyrighted material, maintaining that the public's right to know about matters of considerable historical import, such as Ford's decision to pardon his predecess

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