Andy Warhol Foundation For The Visual Arts, INC. v. Goldsmith

Decided: May 18, 2023
Citation: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (598 U.S. ___, 2023)
Appeal from: Second Circuit
Case document: Andy Warhol v. Goldsmith

Facts of the case
In 1981, Lynn Goldsmith photographed and held copyright for a photograph of singer and musician Prince. Three years following the photo shoot, Goldsmith licensed the use of the photo to Vanity Fair and the magazine commissioned artist Andy Warhol to create a silkscreen work based on the photo, to be used as an illustration alongside an article about the musician in the magazine. The agreement was for a one-time use of the photograph, with permission from Goldsmith and with her credited. However, Warhol used the photo as the basis for his Prince Series without Goldsmith’s knowledge. After Prince died in 2016, Condé Nast (Vanity Fair publisher) created a tribute magazine for him using Warhol’s illustration, as licensed by the Andy Warhol Foundation (“AWF”), on the cover of the magazine without crediting Goldsmith. When Goldsmith became aware of this, she informed AWF of her intent to take legal action. In the U.S. District Court for the Southern District of New York, the judge ruled for AWF in finding that the illustration fell under fair use, leading Goldsmith to appeal to the Second Circuit. After the Second Circuit ruled in Goldsmith’s favor, the Warhol Foundation petitioned the Supreme Court. On June 17, 2022, the News/Media Alliance filed an amicus brief with the Supreme Court.

Question for the Court
The Court considered whether the “purpose and character” of Warhol’s Prince illustration in the Condé Nast tribute was considered transformative in a commercial context such that it could be considered as a “fair use” defense to copyright infringement.

In a 7-2 ruling, the Court decided that the Andy Warhol Foundation violated photographer Lynn Goldsmith’s copyright and the use of the photograph was not protected by fair use. Justice Sonia Sotomayor delivered the opinion, stating, “The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.” Justice Kagan filed a dissenting opinion, in which Chief Justice Roberts joined.

Free press implications
The decision creates implications for copyright infringement and fair use boundaries impacting journalism. Authoring the dissenting opinion, Justice Elena Kagan stated that the decision “will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”

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