# Andy Warhol Foundation v. Goldsmith

Note: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC. v. GOLDSMITH ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 21–869. Argued October 12, 2022—Decided May 18, 2023
Held: The “purpose and character” of AWF’s use of Goldsmith’s photograph in commercially licensing Orange Prince to Condé Nast does not favor AWF’s fair use defense to copyright infringement. Pp. 12–38.
(a) AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose. Moreover, AWF’s use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, in the context of the challenged use, the first fair use factor still favors Goldsmith. Pp. 12–27.
(1) The Copyright Act encourages creativity by granting to the creator of an original work a bundle of rights that includes the rights to reproduce the copyrighted work and to prepare derivative works. 17 U. S. C. §106. Copyright, however, balances the benefits of incentives to create against the costs of restrictions on copying. This balancing act is reflected in the common-law doctrine of fair use, codified in §107, which provides: “[T]he fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching … , scholarship, or research, is not an infringement of copyright.” To determine whether a particular use is “fair,” the statute enumerates four factors to be considered. The factors “set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances.” Google LLC v. Oracle America, Inc., 593 U. S. ___, ___.
The Court’s decision in Campbell is instructive. In holding that parody may be fair use, the Court explained that “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” 510 U. S., at 579. The use at issue was 2 Live Crew’s copying of Roy Orbison’s song, “Oh, Pretty Woman,” to create a rap derivative, “Pretty Woman.” 2 Live Crew transformed Orbison’s song by adding new lyrics and musical elements, such that “Pretty Woman” had a different message and aesthetic than “Oh, Pretty Woman.” But that did not end the Court’s analysis of the first fair use factor. The Court found it necessary to determine whether 2 Live Crew’s transformation rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. Further distinguishing between parody and satire, the Court explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Id., at 580–581. More generally, when “commentary has no critical bearing on the substance or style of the original composition, … the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Id., at 580.
In sum, if an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying. Pp. 13–20.
(2) The fair use provision, and the first factor in particular, requires an analysis of the specific “use” of a copyrighted work that is alleged to be “an infringement.” §107. The same copying may be fair when used for one purpose but not another. See Campbell, 510 U. S., at 585. Here, Goldsmith’s copyrighted photograph has been used in multiple ways. The Court limits its analysis to the specific use alleged to be infringing in this case—AWF’s commercial licensing of Orange Prince to Condé Nast—and expresses no opinion as to the creation, display, or sale of the original Prince Series works. In the context of Condé Nast’s special edition magazine commemorating Prince, the purpose of the Orange Prince image is substantially the same as that of Goldsmith’s original photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince. The use also is of a commercial nature. Taken together, these two elements counsel against fair use here. Although a use’s transformativeness may outweigh its commercial character, in this case both point in the same direction. That does not mean that all of Warhol’s derivative works, nor all uses of them, give rise to the same fair use analysis. Pp. 20–27.
Even granting the District Court’s conclusion that Orange Prince reasonably can be perceived to portray Prince as iconic, whereas Goldsmith’s portrayal is photorealistic, that difference must be evaluated in the context of the specific use at issue. The purpose of AWF’s recent commercial licensing of Orange Prince was to illustrate a magazine about Prince with a portrait of Prince. Although the purpose could be more specifically described as illustrating a magazine about Prince with a portrait of Prince, one that portrays Prince somewhat differently from Goldsmith’s photograph (yet has no critical bearing on her photograph), that degree of difference is not enough for the first factor to favor AWF, given the specific context and commercial nature of the use. To hold otherwise might authorize a range of commercial copying of photographs to be used for purposes that are substantially the same as those of the originals.
(c) 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 photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose. AWF has offered no other persuasive justification for its unauthorized use of the photograph. While the Court has cautioned that the four statutory fair use factors may not “be treated in isolation, one from another,” but instead all must be “weighed together, in light of the purposes of copyright,” Campbell, 510 U. S., at 578, here AWF challenges only the Court of Appeals’ determinations on the first fair use factor, and the Court agrees the first factor favors Goldsmith. P. 38.
11 F. 4th 26, affirmed.
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