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

Supreme Court of the United States · 2023 · Property

PropertyCopyrightFair Usecopyrightfair useSection 107first fair use factortransformative use

Facts

Lynn Goldsmith copyrighted a 1981 black-and-white studio portrait photograph of Prince. In 1984, she licensed that photograph to Vanity Fair as an artist reference for one-time use, and Andy Warhol used it to create an illustration for a Prince article; Warhol also created 15 additional Prince works based on the photo. In 2016, after Prince's death, AWF licensed one of those works, Orange Prince, to Condé Nast for $10,000 for the cover of a special magazine devoted to Prince, while Goldsmith received nothing. Goldsmith claimed that this licensing infringed her copyright, and the only use before the Court was that 2016 commercial license.

Issue

Whether the first fair use factor, 17 U.S.C. § 107(1), weighs in favor of AWF's commercial licensing of Orange Prince to Condé Nast. More specifically, whether that challenged use had a sufficiently different purpose or character from Goldsmith's photograph, notwithstanding any new expression Warhol added.

Rule

Under the first fair use factor, courts must analyze the specific use alleged to be infringing and ask whether that use has a further purpose or different character from the original, which is a matter of degree. New expression, meaning, or message may be relevant, but is not by itself dispositive; the degree of difference must be balanced against other considerations, including whether the use is commercial. If the original work and the challenged secondary use share the same or highly similar purposes, and the secondary use is commercial, the first factor is likely to weigh against fair use absent some other justification for copying.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Tessa Marin, a portrait photographer in Seattle, routinely licenses her photographs of local musicians to magazines. Painter Owen Pike used one of her copyrighted portraits of singer Jalen Cross to make a neon-colored canvas, and a nonprofit museum in Portland later displayed the canvas in an exhibition; months later, Pike separately licensed a digital image of the same canvas to a commercial music magazine for its Jalen memorial issue.

If Tessa sues only over the magazine license, how should a court assess the first fair use factor under the majority's approach?

Explanation. The first factor is use-specific. The court must analyze the particular use alleged to infringe, here the commercial licensing of the image to a magazine, rather than all possible uses of the secondary work. The majority stressed that the same copied material may be fair for one use but not another. (Derived from Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (n.d.).)