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


Citation: 143 S. Ct. 1258, 215 L. Ed. 2d 473 (2023)

Date of Judgement: May 18, 2023

Court: Supreme Court of the United States

Judges: Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, Justice Sonia Sotomayor, Justice Elena Kagan, Justice Neil Gorsuch, Justice Brett Kavanaugh, Justice Amy Coney Barrett, Justice Ketanji Brown Jackson.


Facts


Goldsmith, a professional photographer, took a series of portrait photographs of Prince Rogers Nelson (“Prince”) in her studio. In 1984, Goldsmith, through LGL, (collectively “Goldsmith”) licensed the Goldsmith Photograph to Vanity Fair magazine as an artist reference. Vanity Fair, in turn, commissioned Andy Warhol to create an image of Prince for its November 1984 issue.


Andy Warhol created 15 additional works based on the Goldsmith Photograph, known collectively and with the Vanity Fair image, as the “Prince Series.” Andy Warhol Foundation for the Visual Arts, Inc. (“AWF”) acquired copyright in the Prince Series. In 2016, AWF licensed an image of Orange Prince to Condé Nast to appear on the cover of a commemorative edition magazine about Prince. Goldsmith first became aware of the Prince Series in late July 2016 and contacted AWF to advise it of the perceived infringement of her copyright.


Procedural History


In 2017, AWF sued Goldsmith for a declaratory judgment that the Prince Series works were non-infringing or that they made fair use of Goldsmith's photograph. Goldsmith countersued AWF for copyright infringement. The United States District Court for the Southern District of New York (“the District Court”) granted summary judgment to AWF on its assertion of fair use and dismissed Goldsmith's counterclaim with prejudice. Goldsmith filed an appeal at the United States Court of Appeals, Second Circuit (the “Appeals Court”). The Appeal Court ruled in favour of Goldsmith. However, AWF U.S. Supreme Court (the “Court”) appealed and a certiorari was granted by the Court to revisit the question of whether a work of art is “transformative” when it conveys a different meaning or message from its source material.


Issue


The Appeals Court had addressed all four of the fair use factors. Reference to the case analysis of the Appeals Court decision is available here.

However, the Supreme Court of the United States addressed only the following question:

  • Whether the Court of Appeals correctly held that the first factor, “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?

Analysis


The Supreme Court of the United States (“the Court”) analysed the first factor of fair use and held that for a work to be considered fair use, the purpose and the character of the original work and the secondary work must be different. The degree of difference must be balanced against the commercial nature of the use. However, if both works have a substantially similar purpose and the use of the original work is for a commercial purpose, then it would not constitute fair use. The Court opined that allowing fair use of a work that has a highly similar purpose to the original work will defeat the ultimate goal of copyright protection and the concept of derivative works.


The Court compared the purpose of the Goldsmith's photograph and AWF's 2016 licensing of Orange Prince and found that both share substantially the same purpose, i.e., commercial licensing of the Prince Series. Moreover, AWF's use of Goldsmith's photo was of a commercial nature that counsels against fair use, absent some other justification for copying. Further, the court opined that although transformative use may outweigh its commercial character, here, both elements point in the same direction.


Further, the Court highlighted that fair use analysis provided in earlier decisions cannot be read to mean that § 107(1) weighs in favor of any use that adds some new expression, meaning, or message which will hinder the copyright owners’ right to make derivative works. Finally, the court held that the purpose and character of AWF's use of the Prince photograph in commercial licensing was not fair use.

Conclusion

We believe that the only deciding factor in the instant case was the similar purpose of the parties’ works. The Court also clarified that this decision was fact-specific and did not decide whether the AWF's image of Prince infringes on Goldsmith's copyright. However, the Court granted review to decide only the question of fair use and only the role of a single factor in that affirmative defense. Accordingly, this decision does not change the applicability of the fair use defense where the purpose and character of the works are different.



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