May 18, 2023
AAP Statement on Supreme Court Decision in Copyright Fair Use Case Andy Warhol Foundation v. Lynn Goldsmith
Today the Supreme Court of the United States ruled in favor of photographer Lynn Goldsmith in the copyright fair use case Andy Warhol Foundation v. Lynn Goldsmith. In its amicus curiae brief, the Association of American Publishers explained that our copyright system engenders an ecosystem of free expression, fueled by marketable and enforceable exclusive rights and a reasonable fair use doctrine.
In affirming the Second Circuit, the opinion, penned by Justice Sotomayor, found that “Goldsmith’s photograph and AWF’s 2016 licensing of Orange Prince share substantially the same purpose, and that AWF’s use of Goldsmith’s photo was of a commercial nature.” The Court concluded that these two elements “counsel against fair use, absent some other justification for copying.” The holding enables fair use to strike the proper balance “between original works and secondary uses” through the framework crafted by Congress. Speaking further about the role of copyright in incentivizing authorship, Sotomayor said, “If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity.”
“Today’s decision reinforces the essential role that copyright plays in society,” commented Maria A. Pallante, President and CEO of the Association of American Publishers. “The Court’s decision is consistent with the points we raised in our 2022 amicus brief. Importantly, it reaffirms the fact that transformative use under the first fair use factor requires a robust analysis about the use at issue and cannot be interpreted so broadly as to swallow the derivative work right.”
The facts of the case turn on a photograph of the musician Prince, which the photographer Goldsmith licensed to Vanity Fair for a single use artist rendering in 1984, which Warhol completed, and Vanity Fair published along with attribution to Goldsmith for her underlying photograph. After Warhol’s death, the Warhol Foundation began generating revenue from 15 additional works (mainly silkscreens) that Warhol had made from the photograph without permission but had not himself exploited.
The opinion does not address “the creation, display, or sale of the original Prince Series works.”