The Supreme Court of the United States has issued its long-awaited ruling in the dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation for the Visual Arts (AWFVA) on May 18, 2023. The Court held the AWFVA’s delivery to Condé Nast magazine in 2016 of an Andy Warhol silkscreen from 1984 based on a 1981 Goldsmith photograph of the musician Prince did not satisfy the first factor (of four) of the statutory fair use elements. The Court took a narrow approach, explicitly declining to reach the question of whether Warhol’s original work would qualify for a fair use defense, holding only that the 2016 use did not.
(Williams College Museum of Art Security Badge, ca. 1993)
There is already much debate about the implications of the case, but at least two are clear. First, the Court was forceful in its adherence to the language of the statute itself (Section 107 of the Copyright Act). The Court looked to the “purpose and character” of the work as Congress defined it in the first factor of the fair use statute, rather than a test of whether the secondary work has “new meaning or message.” Second, the Court planted its analysis firmly in the idea that fair use analysis must consider all four of the statutory factors. This is important because particularly since the Cariou v. Prince litigation ten years ago, visual works that were deemed “transformative” had formed a body of caselaw that treated a sufficiently transformative work as fair use almost as a conclusive, single-factor test. The Supreme Court’s opinion in Goldsmith is a reminder that when Congress says four factors, it means four factors—not one.
I was pleased that the Supreme Court’s opinion framed the Warhol Foundation’s case against Lynn Goldsmith as a narrow case about the AWF’s use in 2016, not about the meaning or message of art. This was consistent with the position Philippa Loengard of the Kernochan Center for Law, Media and the Arts at Columbia Law School (for more detail about the case, and a copy of our brief, see here) and I advocated in our amicus brief. The Court’s opinion strikes a pragmatic and sensible balance of the interests of multiple artists. In the end, and respectfully, I think the arguments in support of the AWF never accounted for the fact that they would have made infringement effectively impossible, and considered appropriation an entitlement that is at odds with the balance Congress mandated. Purpose is simply more objectively apparent than meaning. Warhol used commercials or political advertisements, no one believed he was trying to sell soap or procure votes. Asking a judge to decide whether the meaning is different is a bad idea, and more importantly, not what Congress said.
The AWF should count itself fortunate. Had its theory prevailed, its policing of Warhol works’ copyright would have been in grave peril. At oral argument in response to a hypothetical from Justice Thomas, the AWFVA would not admit that using the Orange Prince image to make “Go Orange” poster at a Syracuse University basketball game would be fair use. That is completely consistent with how it asked the Court to rule, and if AWFVA had won, it would have been open season on appropriating Warhol.
Especially welcome was the opinion’s acknowledgement of the obvious: the case involves works by two artists, and Andy Warhol’s works do not have a trump card because of the meaning some (understandably) perceive in his works or, worse, because he is more famous. Warhol and Goldsmith need not be in conflict, indeed Warhol himself proved the point when he sought and obtained a license for the 1984 Vanity Fair article.
Equally important is what the Supreme Court did not do, despites some reports to the contrary. The Court did not rule that Warhol’s Prince series infringed Goldsmith’s copyright (Warhol actually had a license for the original work for use in Vanity Fair), or that Andy Warhol’s works generally fail to qualify as a fair use where they use other images. It did not take a view on what is art or what is not. It ruled that the AWFVA exceeded its rights when it supplied the image to a magazine on the occasion of Prince’s death because that purpose was too close to the purpose for which Goldsmith uses her photographs. There was an article that needed an image for the purpose of depicting Prince’s appearance, and the AWFVA supplied an image taken in large part from Goldsmith to displace what Goldsmith might have supplied. Instead, AWFVA was coopting Goldsmith using her own work.
The tension in this case was always between the statutory language—which instructs an inquiry into the purpose and character of the works—with the interpretive language in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) that allowed for the possibility that a secondary use could be considered a fair use if it were sufficiently “transformative.” But Campbell was trying to make sense of a parody, and was pointing out one way that a work might satisfy the first factor, by adding new meaning or message. The problem is that this Delphic proclamation 30 years ago had been interpreted (particularly in the last ten years) to mean that any new meaning or message made the work transformative, satisfied the first factor, and qualified as a fair use. This had to be corrected, and the Court has done so.
The chief argument in favor of the AWFVA was the idea that acceptance of new meaning or message as sufficiently transformative is essential to support the creation of future art. Otherwise, the argument went, artists would be chilled from creation for fear of infringement.
This argument has always failed, in my view, to have any answers to two critical questions. First, what about the first artist? Headlines about threats to “appropriation art” just skip over the assumption that such appropriation is almost an entitlement. Why would that be so? In any event, the Copyright Act says otherwise. Indeed, the Court took pains to note that other works by Warhol had little to fear from the Copyright Act. The other thing to remember is that this case concerned only the first factor. A secondary work could fail to satisfy the first factor, and still be a fair use if the balance of the other three factors are met. Yet had the AWFVA prevailed, the reverse would never be true; works with new meaning or message would have carte blanche and the first artist would have no recourse. It would never be possible to find infringement, and would render the fair use statute meaningless.
There has been much discussion of the dissent by Justice Kagan, which is full of sarcasm and invective for the majority opinion written by Justice Sotomayor (which regrettably also returns the favor).The dissent makes the cardinal error of any ad hominem argument: it fails to persuade. Rather than sneering “the majority plants itself firmly in the ‘I could paint that’ school of art criticism,” Justice Kagan might well have noted that her dissent smacks of “I took Art History 101, let me explain art to you.” The dissent’s attempt to reconcile the works of Giorgione, Titian, and Goya is entertaining, but it is ultimately insulting and not much more.
Justice Kagan’s art history is also mediocre. Those famous paintings don’t depict the same woman. They aren’t offered at the same moment to illustrate a newsworthy event for which they are in contemporaneous competition. Their commentary on each other (had they been created when each was under copyright) is entirely consistent with the majority’s opinion. Rather, the dissent pours meaning into each of those images that the authors obviously read somewhere else. This was evident in Chief Justice’s (who joined the dissent) commentary at oral argument that “you don't say, oh, here are two pictures of Prince. You say that's a picture of Prince, and this is a work of art sending a message about modern society.” That kind of tendentious, conclusion-driven narrative is terrible art history and worse law. The meaning of a work that a judge heard somewhere is a useless standard, and the Court’s rejection of it is important.
Finally it must be said that this case need never have been filed. Rather than pay Goldsmith a customary license fee, AWFVA tried to burn the entire industry of photography licensing to the ground. The AWFVA is not an artist, its complaints about the future of art creation border on the absurd. It’s fortunate that the Supreme Court stuck to the case before it.
