Episode description

Welcome to Supreme Court Opinions. In this episode, you’ll hear the Court’s opinion in Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith.

In this case, the court considered this issue: What is the proper test for whether a work is “transformative” under the first factor of the Copyright Act’s fair use doctrine?

The case was decided on May 18, 2023.

The Supreme Court held that he “purpose and character” of the Andy Warhol Foundation (AWF)’s particular commercial use of Lynn Goldsmith’s photograph of the musician Prince does not favor AWF’s fair use defense to copyright infringement. Justice Sonia Sotomayor authored the 7-2 majority opinion of the Court.

The fair use defense to copyright infringement promotes creativity by recognizing that some secondary works make unauthorized use of original works but serve a different purpose, add new expression, or convey new ideas. Andy Warhol’s “Orange Prince,” one of the Prince Series that was derived from the photograph by Lynn Goldsmith, appeared on the cover of a Vanity Fair magazine commemorating the late musician for a fee of $10,000—all of which to AWF and of which Goldsmith received none. In contrast, Goldsmith’s photographs were licensed and used on several other magazine covers commemorating Prince.

AWF’s use of Orange Prince on the cover of Vanity Fair served essentially the same commercial purpose as Goldsmith’s original. Thus, the first fair-use factor—the purpose and character of use, including whether the use is for commercial or nonprofit purpose—weighs against the conclusion that AWF’s use of Goldsmith’s photograph for the specific purpose of a magazine cover commemorating Prince was fair.

Justice Neil Gorsuch authored a concurring opinion, in which Justice Ketanji Brown Jackson joined, emphasizing the narrowness of the majority’s opinion and its appropriate focus on the specific use challenged.

Justice Elena Kagan authored a dissenting opinion, in which Chief Justice John Roberts joined, criticizing the majority of stifling creativity and disregarding the reality that creativity relies upon the borrowing of works that came before.

Note: The Court’s opinion here included pictures and paintings. Those images are not captured in this recording. I encourage you to find the opinion online and review the images referenced here. The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.