The Problem With Sup. Ct. Majority Opinion In Andy Warhol Foundation

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."

Although both Goldsmith and AWF had raised other uses earlier in the case, the Supreme Court held that Goldsmith had abandoned her claims as to the other uses and thus did not address them in the opinion (although it is not entirely clear when and how the abandonment arose). Only considering the licensing to Condé Nast, Goldsmith's "uncontroverted evidence" included that photographers generally license their works to others to create "stylized derivatives" and that "Warhol himself paid to license photographs for some of his artistic renditions." More specifically, Goldsmith also proved that she personally routinely licensed her Prince photos to various magazines, including not only for the Warhol "Purple Rain" work used by Vanity Fair in its 1984 article about Prince but also to other magazines such as Newsweek, People and Reader's Digest, for use in connection with their articles about Prince.