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The Problem With Sup. Ct. Majority Opinion In Andy Warhol Foundation
In deciding whether Andy Warhol Foundation's (AWF) licensing of Warhol's iconic "Orange Prince" silkscreen was a copyright fair use of Lynn Goldsmith's source photo of the musician Prince, the U.S. Supreme Court focused not on Warhol's original use of Goldsmith's photo in creating "Orange Prince" but rather on Goldsmith's specific challenge to AWF's licensing of the work to magazine publisher Condé Nast. Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, 14 S.Ct. 1258 (2023). The high court's decision's future application is anything but clear and clarification of the parameters of a "transformative" fair use is left open for another day.
In her majority opinion, Justice Sonia Sotomayor found that because both Goldsmith's "original photograph and AWF's copying use of it share substantially the same purpose" serving as "portraits of Prince used to depict Prince in magazine stories about Prince" and that AWF's copying was commercial in nature, the first fair-use factor of the Copyright Act's 17 U.S.C. §107 (i.e., "purpose and character of the use") favors Goldsmith, regardless of any "new expression" Warhol's "Orange Prince" may have added to Goldsmith's original photograph. The court further clarified that commercial purpose under §107(1) is not dispositive but instead "is to be weighed against the degree to which the use has a further purpose or different character."
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