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October 20, 2022

All's Fair in Love and Warhol? The Supreme Court Revisits Transformative Use

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On October 12, 2022, the U.S. Supreme Court heard oral argument in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Court's second recent foray into the fair use provision of the Copyright Act—after not having weighed in on the doctrine in nearly 30 years. The specific artwork at issue in this case was a series of silk screen printings and sketches, based on a copyrighted photograph, but imbued with Andy Warhol's indelible style and creative sensitivities. The Court's decision, however, is likely to have a significant impact on future fair use analyses, and thus the business and artistic practices of countless authors, owners, and users of copyrighted works.

Factual Background

In 1984, Vanity Fair licensed a copyrighted photo of the musician Prince (the "Goldsmith Photograph"), taken by photographer Lynn Goldsmith in 1981, for use as an "artist's reference" in connection with an article to be published in Vanity Fair Magazine. Vanity Fair then commissioned Andy Warhol to create an illustration based on the Goldsmith Photograph to run with the article. Warhol in fact created a series of 16 works based on the Goldsmith photograph (the "Prince Series"), one of which was published.

In 2016, after Prince's untimely death, Condé Nast (Vanity Fair's parent company) licensed a different work in the Prince Series ("Orange Prince") from the Andy Warhol Foundation for the Visual Arts (AWF), which controlled the rights to Warhol's works, for use in a commemorative issue. Goldsmith became aware of the Prince Series and contacted AWF, alleging infringement of her photograph. In turn, AWF filed suit seeking a declaratory judgment that the Prince Series did not infringe Goldsmith's photograph. Goldsmith filed counterclaims, alleging that they did.