May 31, 2023

The Supreme Court Rules on Goldsmith v. Warhol

We’ll keep this brief as the U.S. Supreme Court’s May 18 decision in Goldsmith v. Andy Warhol Foundation for the Visual Arts, Inc. has already been examined by many others. For example, here, here and here. Also, there will be much more to come as people have time to digest the Court’s ruling and the dissent.

The majority decision, written by Justice Sotomayor, held that Andy Warhol’s artwork Orange Prince, based on a photograph by Lynn Goldsmith and used by Condé Nast on the cover of a 2016 special edition magazine celebrating Prince’s life, was not sufficiently transformative. The Court concluded that the first fair use factor — the “purpose and character” of the second work — favored Goldsmith and not the Foundation. The Court rested its decision largely on the fact that Goldsmith’s photo and Orange Prince both could have served as the magazine cover and, significantly, Condé Nast chose to use Orange Prince as a substitute for Goldsmith’s photo on its magazine. One key point: the creation of Orange Prince went beyond the terms of the publisher’s original 1984 license for Goldsmith’s photo and Goldsmith wasn’t credited as the photographer when Condé Nast used the image in 2016.

By focusing on the fact that Warhol’s adaptation competed commercially with Goldsmith’s original for this specific application, the Court largely avoided having to answer the question of to what extent Warhol’s image visually transformed Goldsmith’s image. This is probably a good thing as judges should not moonlight as art critics. This decision allowed the Court to preserve the right of copyright holders to make derivative works, which would have likely been threatened by a ruling for the Foundation.

However, not everyone on the Court agreed. Justice Kagan wrote a blistering dissent in which she accused the majority of ignoring the extent to which Warhol was a transformative artist.

This focus on Warhol’s overall legacy, however, has its limits as it is not helpful when the next case deals with an artist who is far less famous or has a much less immediately identifiable style than Warhol (which is pretty much everyone). Moreover, Justice Kagan’s hypothesis that Condé Nast selected Orange Prince over the Goldsmith photo because the editors preferred the aesthetics of the Orange Prince ignores one obvious possibility — Conde Nast went with the Warholized image because they thought it would sell more copies of the magazine. The dissent’s failure to recognize Warhol’s unique level of fame and its commercial impact is a pretty big blind spot.

Putting all of that aside, as noted above, the majority’s opinion has the advantage of shifting at least some of the analysis away from having a judge (or a jury) determining the transformativeness of an artwork. However, the majority’s decision does have problems. For starters, it collapses or combines 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”) and the fourth fair use factor (“the effect of the use upon the potential market for or value of the copyrighted work”). Moreover, the idea that Warhol’s use of Goldsmith’s photo is fair use if the image hangs in a museum, but not if it’s on the cover of a magazine is odd. What would have happened if Orange Prince was on the cover of an issue of Vanity Fair that looked at celebrity culture or a catalog of a museum exhibition? Is the analysis different and do artists (and lawyers) now have to make judgments for each particular use? That would seem to be a bad thing. We shall see.