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

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Supreme Court of the United States
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Term: 2022
Important Dates
Argued: October 12, 2022
Decided: May 18, 2023
Outcome
affirmed
Vote
7-2
Majority
Sonia Sotomayor • Clarence Thomas • Samuel Alito • Neil Gorsuch • Brett Kavanaugh • Amy Coney Barrett • Ketanji Brown Jackson
Concurring
Neil Gorsuch
Dissenting
Elena Kagan • Chief Justice John Roberts

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is a case that was decided by the Supreme Court of the United States on May 18, 2023, during the court's October 2022-2023 term. The case was argued before the Supreme Court of the United States on October 12, 2022.

In a 7-2 opinion, the court ruled in Goldsmith's favor and affirmed the judgment of the United States Court of Appeals for the 2nd Circuit. It held that regarding 17 U.S.C. § 107, the “purpose and character" of the Andy Warhol Foundation's commercial use of Goldsmith’s photo infringes on Goldsmith's copyright. Justice Sonia Sotomayor delivered the majority opinion of the court. Justice Neil Gorsuch filed a concurring opinion. Justice Elena Kagan filed a dissenting opinion, joined by Chief Justice John Roberts.[1]

HIGHLIGHTS
  • The case: Artist Andy Warhol created the Prince Series in the 1980s, based on a photograph taken by Lynn Goldsmith of the musician, Prince. After Prince died in 2016, Goldsmith sued the Andy Warhol Foundation for the Visual Arts (AWF) for copyright infringement. The district court held AWF had not violated copyright law. The circuit court reversed the district court's opinion. AWF petitioned the U.S. Supreme Court for review. Click here to learn more about the case's background.
  • The issue: The case concerned copyright law, specifically the Copyright Act's fair use defense.
  • The questions presented: What does it mean for a work of art to be "transformative" as a matter of law under the Copyright Act?[2]
  • The outcome: The Court affirmed the judgment of the United States Court of Appeals for the 2nd Circuit. It held that regarding 17 U.S.C. § 107, the “purpose and character" of the Andy Warhol Foundation's commercial use of Goldsmith’s photo infringes on Goldsmith's copyright [1]


    • The case came on a writ of certiorari to the United States Court of Appeals for the 2nd Circuit. To review the lower court's opinion, click here.

    Timeline

    The following timeline details key events in this case:

    Background

    In 1984, Vanity Fair commissioned artist Andy Warhol to create an image of the musician, Prince, for a magazine article. The magazine licensed a photograph taken by respondent Lynn Goldsmith. Using Goldsmith's photograph as a base, Warhol then produced the Prince Series—a set of 15 images of Prince based on Goldsmith's preexisting photo. Prince died in 2016 and Condé Nast magazine published an issue with one of the images from the Prince Series on the cover. After seeing the issue, Goldsmith threatened to sue the Andy Warhol Foundation (AWF), which held the rights to the Prince Series, alleging copyright infringement. AWF sued Goldsmith for a declaration of non-infringement and Goldsmith countersued for copyright infringement under the Copyright Act.[3]

    The U.S. District Court for the Southern District of New York granted summary judgment to AWF, ruling the Prince Series was "transformative" as a matter of law. According to the court, the Prince Series relied on a different meaning and message from Goldsmith's original photograph. On appeal, the U.S. Court of Appeals for the 2nd Circuit reversed the Southern District of New York's ruling. Ten days after the 2nd Circuit's ruling, the U.S. Supreme Court issued a decision considering the fair use doctrine in Google LLC v. Oracle America Inc. AWF petitioned the 2nd Circuit for an en banc rehearing. The 2nd Circuit granted the request and issued an amended opinion.[3]

    In their petition for review before the U.S. Supreme Court, AWF argued that the fair use defense "ensures that the Copyright Act does not stymie legitimate creative expression."[3]

    The petitioner asked the U.S. Supreme Court to grant review to resolve a conflict of opinion among the U.S. Circuit Courts of Appeal.

    Fair Use and the Copyright Act

    The Copyright Act (917 U.S. Code § 107) authorizes the public to make fair use of copyrighted content. The law outlines four factors for determining whether the use of a work is fair use:

    1. the purpose and the character of the use;
    2. the nature of the copyrighted work;
    3. the amount and significance of the portion of the original work used; and
    4. the effect of the use upon the potential market for the value of the original work.

    Questions presented

    The petitioner presented the following questions to the court:[4]

    Questions presented:
    “ 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).[5] ”

    Oral argument

    Audio

    Audio of oral argument:[6]



    Transcript

    Transcript of oral argument:[7]

    Outcome

    In this case, the Supreme Court was asked to determine if the images that Andy Warhol based on a photograph of Prince by photographer Lynn Goldsmith were a fair use of the photo and that the Warhol Foundation could use them for commercial purposes without Goldsmith's permission.[8]

    In a 7-2 opinion, the court ruled in Goldsmith's favor and affirmed the judgment of the United States Court of Appeals for the 2nd Circuit. It held that regarding 17 U.S.C. § 107, the “purpose and character" of the Andy Warhol Foundation's commercial use of Goldsmith’s photo infringes on Goldsmith's copyright. Justice Sonia Sotomayor delivered the opinion of the court.[1]

    Opinion

    In the court's majority opinion, Justice Sonia Sotomayor wrote:[1]

    “ But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994). Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.

    Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith. [5]

    		”
    —Justice Sonia Sotomayor

    Concurring opinion

    Justice Neil Gorsuch filed a concurring opinion, joined by Justice Ketanji Brown Jackson.

    In his concurring opinion, Justice Neil Gorsuch wrote:[1]

    “ With all this in mind, the Court’s decision seems to me exactly right. Does Mr. Warhol’s image seek to depict Prince as a “larger-than-life” icon while Ms. Goldsmith’s photograph attempts to cast him in a more “vulnerable” light? See ante, at 28–35; post, at 9–10, 35 (KAGAN, J., dissenting). Or are the artistic purposes latent in the two images and their aesthetic character actually more similar than that? Happily, the law does not require judges to tangle with questions so far beyond our competence. Instead, the first fair-use factor requires courts to assess only whether the purpose and character of the challenged use is the same as a protected use. And here, the undisputed facts reveal that the Foundation sought to use its image as a commercial substitute for Ms. Goldsmith’s photograph. Of course, competitive products often differ in material respects and a buyer may find these differences reason to prefer one offering over another. Cf. post, at 10, 18 (KAGAN, J., dissenting). But under the first fair-use factor the salient point is that the purpose and character of the Foundation’s use involved competition with Ms. Goldsmith’s image. To know that much is to know the first fair-use factor favors Ms. Goldsmith.[5] ”
    —Justice Neil Gorsuch

    Dissenting opinion

    Justice Elena Kagan filed a dissenting opinion, joined by Chief Justice John Roberts.

    In her dissent, Justice Elena Kagan wrote:[1]

    “ Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more. Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works. Of course, that is all well and good if an artist wants merely to copy the original and market it as his own. Preventing those uses—and thus incentivizing the creation of original works—is what copyrights are for. But when the artist wants to make a transformative use, a different issue is presented. By now, the reason why should be obvious. “Inhibit[ing] subsequent writers” and artists from “improv[ing] upon prior works”— as the majority does today—will “frustrate the very ends sought to be attained” by copyright law. Harper & Row, 471 U. S., at 549. It 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.

    [5]

    		”
    —Justice Elena Kagan

    Text of the opinion

    Read the full opinion here.

    October term 2022-2023

    See also: Supreme Court cases, October term 2022-2023

    The Supreme Court began hearing cases for the term on October 3, 2022. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[9]


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Supreme Court of the United States,Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith May 22, 2023
    2. ↑ SCOTUSblog, "Justices add three new cases, including challenge to animal-welfare law and Warhol copyright dispute," March 28, 2022
    3. ↑ 3.0 3.1 3.2 Supreme Court of the United States, Andy Warhol Foundation for the Visual Arts v. Goldsmith - "Petition for a writ of certiorari," accessed March 28, 2022
    4. ↑ Supreme Court of the United States, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith - "Questions presented," accessed March 28, 2022
    5. ↑ 5.0 5.1 5.2 5.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ Supreme Court of the United States, "Oral Argument - Audio," argued October 12, 2022
    7. ↑ Supreme Court of the United States, "Oral Argument - Transcript," argued October 12, 2022
    8. ↑ SCOTUSblog Justices debate whether Warhol image is “fair use” of photograph of Prince May 22, 2023
    9. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed January 24, 2022
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