Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
2023 United States Supreme Court case / From Wikipedia, the free encyclopedia
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (598 U.S. ___, 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.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith | |
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Argued October 12, 2022 Decided May 18, 2023 | |
Full case name | Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al. |
Docket no. | 21-869 |
Citations | 598 U.S. ___ (more) |
Argument | Oral argument |
Opinion announcement | Opinion announcement |
Case history | |
Prior | Summary judgement for petitioner, 382 F.Supp.3d 312 (S.D.N.Y., 2019); rev'd, 992 F.3d 99 (2nd Cir., 2021); am'd 11 F.4th 26 (2nd Cir., 2021) cert granted, 596 U.S. ___, (2022) |
Holding | |
Minor alterations to a copyrighted work are not transformative under fair use where altered work was used commercially for substantially similar purpose as original; courts must analyze the specific use of an allegedly infringing work before determining whether that use was transformative. Second Circuit affirmed. | |
Court membership | |
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Case opinions | |
Majority | Sotomayor, joined by Thomas, Alito, Gorsuch, Kavanaugh, Barrett, Jackson |
Concurrence | Gorsuch, joined by Jackson |
Dissent | Kagan, joined by Roberts |
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.