Presented by Kyle Coleman
In an opinion by Justice Sotomayor, a 7-2 Supreme Court held that the first fair-use factor — the purpose and character of the use — weighed against the Andy Warhol Foundation as to one specific use: its commercial licensing of "Orange Prince" to Condé Nast to illustrate a magazine story about Prince. Because that use shared substantially the same purpose as Lynn Goldsmith's original photograph, and was commercial, the degree of difference from the original was not enough to make the first factor favor fair use; new expression or meaning is relevant but not, standing alone, dispositive. The Court decided only the first factor as to the challenged 2016 license, expressly reserving the other factors and the creation and display of the Prince Series. Justice Gorsuch, joined by Justice Jackson, concurred; Justice Kagan, joined by Chief Justice Roberts, dissented.
Andy Warhol Foundation for the Visual Arts v. Goldsmith, decided May 18th, 2023. By a vote of seven to two, in an opinion by Justice Sotomayor, the Supreme Court affirmed the Second Circuit and held that the first fair-use factor — the purpose and character of the use — weighed against the Warhol Foundation as to one specific use: its commercial licensing of an image of "Orange Prince" to Condé Nast. The Court decided that factor, and that use, alone. Here's the brief.
In 1981, photographer Lynn Goldsmith took a studio portrait of the musician Prince. Three years later, Vanity Fair licensed that photograph as an artist reference for a single illustration, and hired Andy Warhol to make it. Warhol used Goldsmith's photograph to create a silkscreen portrait — and, beyond the one commissioned image, fifteen more works that came to be known as the Prince Series. The magazine credited Goldsmith as the source and paid her four hundred dollars for that one-time use; she did not know the rest of the series existed.
When Prince died in 2016, Condé Nast licensed one of those works, "Orange Prince," from the Warhol Foundation for ten thousand dollars, to illustrate a commemorative magazine. Goldsmith saw the cover, recognized her photograph, and notified the Foundation of infringement. The Foundation sued for a declaratory judgment of noninfringement or fair use; Goldsmith counterclaimed. The district court granted the Foundation summary judgment on fair use. The Second Circuit reversed, holding that all four factors favored Goldsmith. The Foundation sought cert, and the Court granted it on the first factor alone.
The question was narrow. Section 107 of the Copyright Act makes the fair use of a copyrighted work not an infringement, and directs courts to weigh four factors. The Court took only the first — the purpose and character of the use, including whether it is commercial — and it addressed that factor as to only one use, the 2016 Condé Nast license. It did not decide the other three factors, the creation of the Prince Series, or whether the works were substantially similar.
Under the first factor, the central question, drawn from Campbell v. Acuff-Rose Music, is whether the challenged use merely supersedes the original or instead adds something new, with a further purpose or different character. That inquiry, the Court stressed, is one of degree.
The Foundation argued that the Prince Series is transformative — that Warhol gave the photograph a new meaning, a comment on celebrity and fame — and that this new expression made the first factor favor fair use. The Court disagreed that new meaning, standing alone, controls.
The first factor, it explained, asks whether a use has a further purpose or different character, and weighs the degree of difference against other considerations, like commercialism. New expression may be relevant, but it is not, without more, dispositive.
Here, the Court reasoned, the specific use — licensing Orange Prince to illustrate a magazine story about Prince — shared substantially the same purpose as Goldsmith's original photograph, which also illustrated magazine stories about Prince. And the use was commercial. Together, those two things weighed against fair use. The Court drew the contrast with Campbell, where a parody had to conjure up the original in order to comment on it; the Foundation's licensing needed no such justification.
Justice Gorsuch concurred, joined by Justice Jackson. Justice Kagan dissented, joined by Chief Justice Roberts, arguing the majority undervalued Warhol's transformation of the image.
Warhol confirmed that the first fair-use factor turns on how a copy is actually used, not on the artist's asserted meaning or message alone — and that a new meaning does not, by itself, make a commercial use that serves the same purpose transformative. The holding is deliberately cabined: it resolved the first factor, as to one commercial license, and reserved the creation and display of the Prince Series. The majority and the dissent divided over how much weight artistic transformation carries — a divide the decision framed but did not close.
Andy Warhol Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508, decided May 18th, 2023. I'm Kyle Coleman. Thanks for watching.
These videos are educational case briefs, not legal advice, and watching them does not create an attorney-client relationship with the presenter or the firm. Case law and its interpretation evolves, always check a decision's subsequent history. Do not rely on these case briefs, but read the case yourself or have your attorney read them. Videos are presented via an AI avatar and voice clone of Kyle Coleman, created with his participation and consent.
