The US Supreme Court recently decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. The case involved an orange silkscreen portrait of the musician Prince. “Orange Prince” was created by pop artist Andy Warhol and was derived from a copyrighted photograph taken in 1981 by Lynn Goldsmith. Orange Prince is one of 16 works which Warhol produced from Goldsmith’s photograph. The works have become known as the Prince Series.

The issue was whether the publication of Warhol’s Orange Prince on the cover of a 2016 issue of Vanity Fair magazine commemorating Prince was Fair Use under 17 U.S. Code § 107 of the Copyright Act (the “Act”). The Andy Warhol Foundation for the Visual Arts (AWF) had granted Vanity Fair a license to use the image.

The Act sets forth certain limitations on the exclusive rights granted the copyright holder, i.e., the “fair use” exceptions. The four-factor fair use test looks at:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

The Supreme Court focused solely on the application of the first of the four factors of the test which is an analysis of the “purpose and character” of the use. Considered is whether the use is “transformative” and of a “commercial nature.”

The “extent” to which the use at issue has a purpose or character different from the original is examined. The greater the difference between the two, the more likely the first factor weighs in favor of fair use. Further purpose or different character can be “transformative” depending on the degree. Parody is an example transformativeness. Whether the use at issue is commercial is also considered.

After applying the test, the Court found that:

Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.  Such protection includes the right to prepare derivative works that transform the original. 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. AWF has offered no other persuasive justification for its unauthorized use of the photograph.  Therefore, the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” §107(1), weighs in Goldsmith’s favor.

Key to the Court’s finding was that the photo had been licensed in the past for substantiality the same commercial purposes as Vanity Fair used Orange Prince, i.e., to depict Prince in magazine stories about Prince. The Court also rejected the argument that the work was transformative because it was immediately recognizable as being a Warhol. The photograph being “stylized” by Warhol did not in and of itself “transform” the work into something else.

A copy of the decision can be found here: https://spelusolawoffice.com/wp-content/uploads/2023/06/21-869_87ad.pdf.