AUTHORS NOTE: This post will be updated with more analysis throughout the coming days.
This morning, the US Supreme Court released its opinion The Andy Warhol Foundation v. Goldsmith (linked here and in-line in this post below), a case ASMP has been following since its inception, and one in which we filed multiple amicus briefs in on behalf of Lynn Goldsmith, a long-time ASMP member. Our prior coverage can been seen below, including a livestream analysis on YouTube of the oral arguments in front of the court that paved the way for this opinion.
The importance here cannot be overstated. The last case that the US Supreme Court fully opined on transformation and fair use was more than 25 years ago in Campbell v. Acuff-Rose. Here, the Court has added much needed guidance to when a use is truly “fair” and when it is an impermissible usurpation of the rights of the copyright holder.
The Bottom Line
In a, 87-page, 7-2 opinion written by Justice Sotomayor (with Justices Kagan and Roberts dissenting) the Court held that the use that the Andy Warhol Foundation made of Lynn Goldsmith’s photograph, as pertains to the only question in front of the Court, was NOT transformative such that it would tend towards fair use. Specifically, they noted:
- The “purpose and character” of the AWF use of Goldsmith’s photographs did NOT weigh in favor of fair use.
- “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.”
- “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
As Justice Sotomayor wrote in her opinion, the background is as follows:
In 1984, Vanity Fair sought to license one of Goldsmith’s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition that the use of her photo be for “one time” only.
The artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen using Goldsmith’s photo, and Vanity Fair published the resulting image alongside an article about Prince. The magazine credited Goldsmith for the “source photograph,” and it paid her $400.
Warhol, however, did not stop there. From Goldsmith’s photograph, he derived 15 additional works. Later, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to Condé Nast, again for the purpose of illustrating a magazine story about Prince. AWF came away with $10,000. Goldsmith received nothing.
When Goldsmith informed AWF that she believed its use of her photograph infringed her copyright, AWF sued her. The District Court granted summary judgment for AWF on its assertion of “fair use,” 17 U. S. C. §107, but the Court of Appeals for the Second Circuit reversed.
In this Court, the sole question presented is 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,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast. On that narrow issue, and limited to the challenged use, the Court agrees with the Second Circuit: The first factor favors Goldsmith, not AWF. (Emphasis Added).598 U.S. _________ (2023) (pp. 1-2)
The Most Critical Quotes from the Majority Opinion
This case will likely have wide-ranging implications in not only the worlds of fine-art but also across all intellectual property areas. Copyright practitioners have long sought clarification on what “transformation” actually means in the context of a fair use analysis. Here are some of the most important parts of the opinion as well as some brief explanation.
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. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579 (1994). Although new expression 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.598 U.S. _________ (2023) (p. 12)
In this passage, the Court clearly identifies what it set out to do: determine the boundaries of what constitutes transformation in the context of fair use analysis. AWF wanted to say that any use that gives the underlying work new message, meaning, or expression is transformation, the Court held that is not the case; other factors must be considered at this stage as well.
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, the copying use is of a commercial nature. Even though Orange Prince adds new expression to Goldsmith’s photograph, as the District Court found, this Court agrees with the Court of Appeals that, in the context of the challenged use, the first fair use factor still favors Goldsmith.598 U.S. _________ (2023) (pp. 12-13)
In the amicus brief authored by ASMP and others, we focused on the exact issue raised here by the Court: that the use at issue was Warhol’s portrait of Prince that was used to illustrate an article about Prince. This is the same purpose.
But an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works. To preserve that right, the degree of transformation required to make “transformative” use of an original must go beyond that required to qualify as a derivative.598 U.S. _________ (2023) (p. 16)
Here, the Court cabins the expansion of fair use by noting that such wide latitude on fair use would infringe on the right of the copyright holder to make derivative works, one of the exclusive rights granted by the Copyright Act. I will dive deeper into this in the future, but this is a very important pronouncement by the Court.
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…598 U.S. _________ (2023) (p. 20)
Again, the Court, correctly in our view, focuses on the specific “use” at issue, not the idea of use as a whole. This is in keeping with the purpose of the Copyright Act.
But Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds some new expression, meaning, or message. … Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works.598 U.S. _________ (2023) (p. 28)
The Court here uses unambiguous language to eliminate an oft-used point raised in fair use analysis. Simply adding “some new expression, meaning or message” does NOT, in and of itself, create a transformational use. Period.
To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use. Many photographs will be open to various interpretations. A subject as open to interpretation as the human face, for example, reasonably can be perceived as conveying several possible meanings. The application of an artist’s characteristic style to bring out a particular meaning that was available in the photograph is less likely to constitute a “further purpose” as Campbell used the term. 510 U. S., at 579.598 U.S. _________ (2023) (p. 33)
The fact that the Court fully understood the impact on photography that the interpretation AWF was taking would have is vital. If all that it took to be considered fair use is that there was some degree of difference in expression, meaning, or message, then it would be open season on photographs for all sorts of purposes.
It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place.598 U.S. _________ (2023) (p. 36)
And in this one passage, the Court guts the slippery slope argument used by AWF and its supporters. Lynn Goldsmith is not looking to reap unwarranted benefits; rather she is looking to enforce her rights to have her work, passion, and experience not be used without proper compensation. That should not be a contentious position.
Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.598 U.S. _________ (2023) (p. 38)
No more needs to be said. This is what groups like ASMP and photographers have been saying since the beginning of this matter. And now the Supreme Court has heard all arguments and rendered their opinion. And their opinion is in support of Goldsmith’s right to create and make a living in her profession.
ASMP applauds the US Supreme Court on this 7-2 decision. We will have much more on the dissent, the concurrence by Justices Gorsuch and Jackson, and more in the coming days.
— Thomas Maddrey, Chief Legal Officer, ASMP