May 18, 2023
Decided May 18, 2023
Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869
Today, the Supreme Court held 7-2 that the fact that a secondary work of art that incorporates copyrighted source material conveys a distinct meaning or message is not sufficient to render the secondary work transformative for purposes of the fair use analysis.
Background: Photographer Lynn Goldsmith licensed a black and white photograph of Prince to Vanity Fair for use as an artist’s reference in its November 1984 issue. The artist Vanity Fair chose, Andy Warhol, cropped the photograph, silkscreened it onto multiple canvases, and layered each canvas with different brightly colored paints. In all, Warhol created four drawings and 12 silkscreens from the photograph, one of which Vanity Fair ultimately published. After Prince’s death in 2016, the Andy Warhol Foundation licensed one of Warhol’s other silkscreened Prince images to Condé Nast for a special tribute issue. When Goldsmith asserted that Warhol’s image infringed her copyright, the Foundation sued her for a declaration that Warhol’s Prince series was protected under the fair use doctrine. Goldsmith countersued for copyright infringement. The district court held that the images were protected fair use because Warhol transformed Goldsmith’s original photograph to convey a different meaning. The Second Circuit reversed, cautioning that the addition of new meaning was not necessarily transformative.
Issue: Is a work of art sufficiently transformative for purposes of the fair use doctrine when it conveys a different meaning or message from the source material?
No. That a work of art adds a new meaning or message to the source material is not sufficient to render that work transformative—courts must also consider the purpose and commercial nature of both the source material and the secondary work.
“Many secondary works add something new. That alone does not render such uses fair.”
Justice Sotomayor, writing for the Court
What It Means:
The Court’s opinion is available here.
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