The recent U.S. Supreme Court decision in the latest art appropriation dispute likely has artists everywhere concerned that their works may be subject to future litigation. The highest court in the nation has found that the licensing of an Andy Warhol artwork, derived from a photograph taken in 1981 by photographer Lynn Goldsmith, was not fair use under the Copyright Act.

Background

In 1984, Vanity Fair obtained a single-use license for Goldsmith’s photograph of Prince to be used as an artistic reference for an illustration to an article on Prince called “Purple Fame,” which the magazine published that year. Andy Warhol was commissioned to create the orange silk-screen illustration. Unbeknownst to Goldsmith, he created 15 other works, called the “Prince Series.”

In 2016, following the death of Prince, Condé Nast licensed another of the Prince Series silk-screen portraits (Orange Prince) from the Andy Warhol Foundation to include in an article commemorating the artist’s death. Goldsmith first became aware of Warhol’s follow-on use of her photograph due to this 2016 publication. She approached the Andy Warhol Foundation with a copyright infringement claim and the Foundation brought a suit seeking a declaration of non-infringement.

The court of first instance ruled in favor of the Foundation, finding fair use of Goldsmith’s photo on the grounds that Warhol transformed her depiction of a “vulnerable” musician into a “larger-than-life” figure, thus giving a new meaning or message to the original work. On appeal to the Second Circuit, Goldsmith prevailed. The Second Circuit reversed the lower court’s ruling, finding that Warhol’s use was recognizably derived from the original and, therefore, the new meaning and message argument put forth by the Foundation was not determinative. The Second Circuit, interpreting the purpose and character of the use as part of the fair use analysis, determined that Warhol’s illustration also was a work of visual art depicting the same person, and considered the possibility of market harm caused by the Foundation.

As such, the Second Circuit found all four factors under the statutory fair-use analysis under the Copyright Act in favor of Goldsmith. The Foundation petitioned the Supreme Court to grant a writ of certiorari. The Supreme Court agreed to hear the case, with the sole question presented being whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” weighs in favor of the Foundation’s recent commercial licensing to Condé Nast.

The Opinion

On May 18, 2023, in a 7–2 decision, authored by Justice Sonia Sotomayor, the Supreme Court found for Goldsmith as to the first factor of the fair use analysis (the purpose and character of the use), resolving the sole question presented. The High Court’s analysis dissected the meaning of “purpose and character of the use” under the Copyright statute and whether the license of the follow-on work created by Warhol was for a different purpose than the original photograph taken by Goldsmith.

Photographs are generally entitled to copyright protection, and that protection includes the right to create “derivative” works based on preexisting works. Nonetheless, the Copyright Act provides that other people can use copyrighted works without a license under certain circumstances, a concept known as “fair use.” Fair use may be found if, among other things, the follow-on use has a different purpose and character and is sufficiently distinct from the original.

The Supreme Court in Campbell v. Acuff-Rose Music (1994) established that as part of the analysis of the first fair use factor, the court needs to determine whether a derivative work “alter[s] the first [work] with new expression, meaning, or message” or “transforms” the original work.

The Foundation argued that Warhol’s purpose was to comment on the “dehumanizing nature” and “effects” of celebrity, whereas Goldsmith’s purpose was to create a photorealistic portrait of Prince. In rebuttal, Goldsmith’s attorneys argued that the adoption of the Foundation’s views would reduce the right of copyright owners to create derivative work, as arguably every follow-on work may be interpreted to add a new meaning or message to some extent.

In the end, the Court – looking solely at the Foundation’s commercial license and not opining on Warhol’s artistic use – found that Goldsmith’s purpose and the Foundation’s purpose were essentially the same: to commercially license an image that was to be used to illustrate a magazine article on Prince. Given that the purpose of the license of Orange Prince was strictly commercial, the majority determined that the first fair use factor weighed against the Foundation’s commercial licensing of Orange Prince to Condé Nast.

In its analysis, the majority also appeared to downplay the changes that Warhol made to the photograph that he referenced in creation of the Prince Series, while noting time and again that the Court “expresses no opinion as to the creation, display, or sale of the original Prince Series works.”

Dissenting Opinion

In an impassioned dissent, Justice Kagan, with Justice Roberts concurring, questions the majority’s decision to focus heavily on the commercial nature of the license while downplaying and lacking an appreciation for the dramatic changes made by Warhol to the meaning, message and aesthetics of the silk-screen print. Her fear that the decision left the test for factor one of the fair use analysis “in shambles,” may be shared by the art community, which was influenced by the centuries of art appropriation being a recognized and accepted practice and relies on the same approach to this day. In particular, Justice Kagan expressed her concern that the decision would “stifle creativity of every sort,” impeding new art, music and literature.

Justice Kagan also made note of the majority’s inconsistencies in evaluation of factor one, citing to Campbell and Google v. Oracle (2021),where the inquiry under the first factor was “whether the copier’s use ‘adds something new, with a further purpose or different character, altering the copyrighted work with new expression, meaning or message.’” Justice Kagan referenced many historical examples of artists relying on prior works to create something new, promoting the progress of the arts, which is the stated goal of the U.S. Copyright Law.

Criticizing the majority’s viewpoint on art, Justice Kagan offered that the opinion ignored the purpose of copyright law, as “[all] that matters” was that “Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him.”

“In declining to acknowledge the importance of transformative copying, the court today, and for the first time, turns its back on how creativity works,” Justice Kagan said.

Justice Kagan further pins down the Court’s misunderstandings in the key differences between the two works by comparing Warhol’s work as “an Instagram filter, and a simple one at that (e.g., sepia-tinting).”

This judicial disagreement illustrates that the concept of fair use is difficult to interpret and to apply even for the judges of the High Court. While it remains to be seen how this narrow Supreme Court decision is interpreted in subsequent cases involving expressive works of art, it appears to create even more uncertainty as to how this decision will impact creation and sale of original works of appropriation art.

Impact

The biggest key takeaway from Warhol may be that context matters.

In reaching its decision, the majority looked at the particular use of the work under factor one of the fair-use analysis under the Copyright Act. However, it still may be too early to understand the full implications of this decision. Despite the narrow holding, it is possible that future interpretations of the decision may not be uniform in the lower courts, with judges pulling apart this decision sentence-by-sentence to support their future decisions.

Whether this decision will continue to be narrowly read to apply only within the context of licensing use or, to Justice Kagan’s point, apply on a broad scale to art appropriation and stifle creation of derivative works is still to be seen.

The question remains, by not ruling in favor of Warhol, “the avatar of transformative copying,” despite its narrow holding, will the Court’s decision negatively impact the future of creativity? How will appropriation artists and their foundations deal with the uncertainty as to the legal status of the work that may be fair use when created and not fair use when it is licensed?

Richard Prince (distinct from the late singer Prince), a contemporary appropriation artist who is not a stranger to fair use lawsuits, recently lost one such suit in the case of Graham v. Prince, involving Richard Prince’s artistic use of a Daniel Graham photograph, surrounded by Instagram iconography and printed on canvas. The New York Times recently reported Graham’s attorney’s comment that the Supreme Court’s decision will not have an impact on Richard Prince, who does not license his works.

The artists who do license may need to consider that the status of some of their appropriation artworks may be uncertain throughout the life cycle of the work. Of course, one way toward more certainty is to get a license, something that even Andy Warhol was known to do.