On May 18, 2023, the Supreme Court issued its long-awaited decision in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, et. al. (Case #21-879). A copy of the opinion is available here.
As discussed in an earlier post, this case involved Andy Warhol’s unlicensed use of Lynn Goldsmith’s photograph of Prince to create silk-screened works, one of which was later licensed by The Andy Warhol Foundation for the Visual Arts to illustrate a magazine’s tribute to Prince after his death. The Supreme Court was asked to decide if this use infringed Goldsmith’s copyright, or if it was excused as transformative fair use. Fair use is evaluated under four factors. Transformativeness is part of the first factor: the purpose and character of the use.
OW&E’s Linda Joy Kattwinkel, along with James Silverburg of the Intellectual Property Group LLC, submitted an amici curiae brief in the case to the U.S. Supreme Court on behalf of the Graphic Artists Guild and the American Society for Collective Rights Licensing. The brief argued that transformativeness must be understood as a matter of degree, and that to override the other fair use factors, the transformativeness must be of a very high degree.
The Supreme Court essentially agreed with the brief’s position. It held that, under the first fair use factor, transformativeness must be evaluated as a matter of degree, and further, that the degree of transformativeness must be weighed against the degree of commercial use by the copyist. The Court found that the different character of Warhol’s unauthorized Prince image was at the “lowest ebb” of transformativness because it was not necessary, but only “helpful” to use Goldsmith’s particular photograph to convey his message about Prince’s celebrity. Also, the purpose of the two works was essentially the same, namely, to illustrate magazine articles about Prince. This meant that the commercialism of the use (licensing for the magazine article) outweighed the low degree of transformativeness, and thus the first factor weighed against fair use. (Because the Foundation did not challenge the lower court’s holding that the other three fair use factors weighed against fair use, the decision in favor of Goldsmith was affirmed).
“This decision signals a fundamental sea change in fair use jurisprudence,” says Kattwinkel. “Courts had been treating transformativeness as a one-size-fits-all determination that overrode the other fair use factors. This case means that courts cannot hold that a work of appropriation art is excused as transformative fair use simply because the appropriation artist (even a famous one) transformed the original image by re-rendering it in her or his unique artistic style. There must be a compelling reason to use the underlying image to achieve the new work’s meaning or message, and the purpose of the new use must be significantly different from that of the original.” As an example of a stronger degree of transformativeness, the Supreme Court noted (as had Kattwinkel’s brief), that unlike his Prince image, the purpose of Warhol’s Campbell Soup images was quite different from the original and thus much more transformative: the purpose of the labels was to advertise and sell soup; while the purpose of Warhol’s images was to comment on consumerism.
Kattwinkel is happy with the Court’s ruling: “This decision restores an appropriate balance between the artistic freedom of appropriation artists to respond to and comment on pre-existing works, and the exclusive rights to create derivative works given to artists under copyright law. It protects photographers, illustrators, authors, screenwriters, musicians, and all creatives whose livelihood depends on their ability to license rights to create derivative works.”