Does a work of art that visually resembles its copyrighted source material, but conveys a different meaning, constitute fair use? Is a court permitted to consider meaning when evaluating copyright infringement claims?
This case asks the Supreme Court to determine whether a work of art that visually resembles its source material but transforms its meaning constitutes fair use under copyright law. The Andy Warhol Foundation for the Visual Arts (AWF) argues that several screenprints created by Andy Warhol, which derive from an original photograph by Lynn Goldsmith, are transformative and constitute fair use because they portray a significantly different message than Goldsmith’s original photograph. Goldsmith argues that since her photograph is recognizable in Warhol’s prints and the works share the same purpose, the prints are not fair use but rather infringe her copyright in her photo. The outcome of this case carries implications for copyright holders’ economic incentives, marginalized artists’ commercial prospects, and creative expression.
Questions as Framed for the Court by the Parties
Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it “recognizably deriv[es] from” its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).
In 1981, Lynn Goldsmith, a prominent celebrity portrait photographer, took a photograph of the musician Prince. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith at 33. Goldsmith holds a copyright in the photo. Id. at 32. In 1984, Goldsmith’s agency, Lynn Goldsmith, Ltd. (“LGL”), issued a license to Vanity Fair magazine to use the photograph as an artist reference. Id. An artist reference is when an artist creates a work of art based on the referenced image. Id. at 34.
Vanity Fair commissioned Andy Warhol, a famous artist, to create an image of Prince for publication alongside an article about the musician, and credited Goldsmith with the “source photograph” for the illustration Warhol produced. Id. Warhol ultimately created fifteen works derived from Goldsmith’s Prince photo, which became known as the Prince Series. Id. Ownership of the copyright in the Prince Series images belongs to the Andy Warhol Foundation for the Visual Arts ("AWF"), a not-for-profit corporation established in 1984 following Warhol’s death. Id. at 33. AWF licenses the Prince Series for commercial, editorial, and museum usage through the Artists Rights Society, a third-party organization acting as AWF’s agent. Id. at 35.
Following Prince’s passing in 2016, Goldsmith learned of the Prince Series when AWF licensed one of the Prince Series images to Condé Nast, the parent company of Vanity Fair, for publication in its tribute issue of the magazine. Id. Goldsmith received no credit as the source image, and only AWF was attributed. Id. Goldsmith subsequently notified AWF of its potential violation of her copyright in the original photograph. Id.
In 2017, AWF sued Goldsmith and LGL, seeking a declaratory judgment that the Prince Series did not infringe Goldsmith’s copyright, or alternatively, that the Series made fair use of her original photograph. Id. Goldsmith and LGL then counterclaimed for copyright infringement. Id.
The United States District Court for the Southern District of New York granted summary judgment to AWF on its fair use claim and dismissed Goldsmith and LGL’s infringement counterclaim with prejudice. Id. Among other factors, the court concluded that the Prince Series was transformative because it depicted Prince as an “iconic, larger-than-life figure,” while the Goldsmith photograph portrayed him as an uncomfortable and “vulnerable human being.” Id. at 36.
Before the Second Circuit, Goldsmith and LGL asserted that the District Court erroneously assessed and applied the fair use factors under 17 U.S.C. § 107. Id. at 32. The Second Circuit agreed, finding that all four fair use factors favored Goldsmith, and that the Prince Series did not constitute fair use as a matter of law. Id. at 51. Four factors determine whether the use of a copyrighted work is fair, including (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount copied, and (4) the effect of the use on the potential market for the original. Id. at 37. Under the first factor, the court held that a work is not transformative based on the perceived meaning of the work, but rather, based on whether the work adds a “‘fundamentally different and new’ artistic purpose” to the original. Id. at 41–42. The court found that Goldsmith’s photo remained recognizable in Warhol’s print, and Warhol did not add or change enough for his work to be considered fair use. Id. at 42–43.
The Second Circuit reversed the district court’s grant of AWF’s summary judgment motion, vacated its judgment dismissing LGL and Goldsmith’s counterclaim, and remanded the case for further proceedings consistent with its opinion. Id. at 54. The Supreme Court granted certiorari on March 28, 2022.
APPLICATION OF THE FAIR USE DOCTRINE
Copyright protection for authors of creative works comes from the intellectual property clause of the Constitution and the U.S. Copyright Act. U.S. Const. art. I, § 8, cl. 8; 17 U.S.C. §§ 101– 1511. Under § 106 of the Copyright Act, valid copyright owners have exclusive rights over their works, including rights to reproduce, copy, distribute, display, perform, and create derivative works. 17 U.S.C. § 106. Copyright infringement will not be found if the copying is fair use under § 107 of the Copyright Act. 17 U.S.C. § 107.
Petitioner Andy Warhol Foundation for the Visual Arts, Inc. (“AWF”) asserts that the prints in Warhol’s Prince Series are transformative and are fair use of Respondent Lynn Goldsmith’s photograph. Brief for Petitioner, Andy Warhol Foundation for the Visual Arts, Inc. (“AWF”) at 33. Under the first of the fair use factors—the purpose and character of the use—AWF maintains that a use is fair if it transforms the original to further a distinct purpose. Id. at 34. AWF emphasizes that use of a copyrighted work is transformative under Campbell v. Acuff-Rose Music, Inc. when it conveys a “new expression, meaning, or message.” Id. AWF calls this “Campbell’s meaning-or-message test” and asserts that the test applies to all analyses of transformative use. Id. at 35. Thus, AWF argues, despite similarities between the use and the original, or even literal copying of the original, a use is transformative if it adds new meaning. Id. at 36. AWF also notes that the Supreme Court in Google LLC v. Oracle America, Inc. referenced another one of Warhol’s works—soup cans displaying the Campbell’s soup brand logo—as a transformative use. Id. at 35.
AWF supports Campbell’s meaning-or-message test by arguing that it follows the text and purpose of the Copyright Act. Id. at 37. Through common law and codification, AWF states, copyright protections have always intended to balance author protection with the public interest in the freedom to develop subsequent creative works. Id. at 38. AWF asserts that the fair use doctrine serves as a check on unlimited copyright protections to allow the creation of new works that permissibly borrow from previous works. Id. at 39. Accordingly, AWF continues, fair use has always focused on the meaning of a new work to ensure it is genuinely distinct from the original work from which it borrows. Id. AWF argues that works with a distinct meaning necessarily have a distinct purpose as required under the “purpose and character” factor of § 107. Id. at 41.
AWF asserts that the Prince Series is transformative under Campbell’s meaning-or-message test. Id. at 46. AWF points to Goldsmith’s testimony that she intended her photograph to portray Prince as “uncomfortable” and “vulnerable.” Id. at 44. In contrast, AWF emphasizes, Warhol’s cropping and silk-screening process removes Prince’s vulnerability and is intended to portray Prince as an icon, rather than “[an] actual human being.” Id. at 45. AWF contends that these differences in meaning make Warhol’s use of Goldsmith’s photo transformative, and therefore fair use. Id. at 46.
Respondents Lynn Goldsmith and Lynn Goldsmith, Ltd. (collectively “Goldsmith”) dispute that the Prince Series is transformative. Brief for Respondents, Lynn Goldsmith and Lynn Goldsmith, Ltd. at 23. Goldsmith emphasizes that uses of copyrighted works can vary widely in their purpose and amount of copying—some, but not all, of these uses are permitted under the fair use analysis. Id. at 24. Goldsmith disapproves of AWF’s focus on only the first factor and further asserts that AWF mischaracterizes the transformative analysis. Id. According to Goldsmith, transformative uses must not only have a different meaning or message than the original, but the copying must be necessary to achieve a distinct purpose from the original. Id. at 25–26. Furthermore, Goldsmith argues, the use must serve as more than a mere substitute for the original work. Id. Goldsmith explains that the requirement of adding to the original work, rather than substituting for it, diminishes the likelihood of market harm to the original, the fourth and “most important” factor in the fair use analysis. Id. at 26–27.
Goldsmith supports her interpretation of § 107 with the statutory text and purpose, precedent, and common law. Id. at 25–29. All of these sources, Goldsmith argues, support the requirement that copying must be necessary for the use’s transformative purpose, and the use must not be a substitute for the original. Id. This substitution analysis, Goldsmith explains, furthers the purpose of copyright to protect authors’ efforts while allowing for a “limited exception” for fair uses which are genuinely transformative innovations. Id. at 29–30.
Goldsmith then asserts that the Second Circuit correctly determined that the Prince Series is not transformative. Id. at 30. Though the Prince Series may have a different meaning than Goldsmith’s photo, Goldsmith argues that using her specific photo was not necessary for Warhol to create the prints. Id. at 31. Rather than choosing Goldsmith’s photo for a specific artistic purpose, Goldsmith points to evidence that Warhol did not select the photo and likely would not have created the series at all without being hired by Vanity Fair. Id. Goldsmith also contends that AWF’s licensing of images of Warhol’s prints is an impermissible substitute for her photo. Id. Goldsmith points out that the photo was only used because Vanity Fair licensed the photo from Goldsmith, and Goldsmith was credited in the first publication of a Prince Series print. Id. Goldsmith concludes that even if the Court decides that unnecessary copying can be fair use when the works have distinct purposes, the purposes of the works in this case are identical and thus Warhol’s print cannot be fair use. Id. at 32.
EVALUATING TRANSFORMATIVE USE
In arguing that the Prince Series is transformative, AWF also asserts that the Second Circuit’s analysis of transformative use violates precedent. Brief for Petitioner at 46. First, AWF contends that the Second Circuit held that courts should not “assume the role of art critic” and consider whether the two works have different meanings. Id. at 47. This ruling, AWF argues, directly contradicts Campbell’s meaning-or-message test. Id.
Second, AWF maintains that the Second Circuit incorrectly focuses on the visual similarity between the two works. Id. at 48. AWF argues that this focus disregards the precedent laid out in Campbell and Google, in which uses have been found to be fair even when the original was recognizable in or even identical to the use at issue. Id. at 49. Furthermore, AWF contends, focusing on visual similarity duplicates the analysis of substantial similarity that is an entirely different step in a copyright infringement analysis. Id. In contrast, AWF emphasizes that the fair use defense is intended to excuse uses that are transformative despite their substantial similarity. Id. at 50. Similarly, AWF dismisses the argument that similar uses may infringe an author’s exclusive right to create derivative works because when fair use applies, the alleged infringement is permitted. Id. at 51.
Third, AWF disputes the Second Circuit’s ruling that Warhol’s prints and Goldsmith’s photograph have the same purpose as works of art depicting the same person. Id. at 52. AWF argues that the Second Circuit improperly generalized the purposes of the two works because under the court’s reasoning, virtually any two works can be considered to share the same purpose. Id. at 53. Instead, AWF asserts that the two works have different purposes because they convey different meanings. Id. at 52.
In contrast, Goldsmith supports the Second Circuit’s finding that the Prince Series is not transformative and agrees with the court’s reasoning. Brief for Respondents at 30. Goldsmith contests AWF’s characterization of the Second Circuit’s ruling. Id. at 33. First, Goldsmith explains that the Second Circuit does not prohibit consideration of the works’ meaning, but merely holds that such consideration does not determine the transformative analysis. Id.
Second, Goldsmith asserts that the Second Circuit does not inappropriately focus on visual similarity but considers the similarity in the context of the works’ purposes. Id. The two works have the same purpose, Goldsmith argues, so their visual similarity is impermissible. Id. Goldsmith also disputes AWF’s assertion that considering visual similarity within the fair use analysis duplicates the analysis of substantial similarity when determining infringement. Id. at 34. Goldsmith explains that substantial similarity analysis is intended to determine whether copying happened at all, while comparing visual similarity as part of a fair use analysis informs whether the works at issue have distinct purposes. Id.
Third, Goldsmith supports the Second Circuit’s comparison of the works’ purposes and does not agree that this comparison is too general. Id. On the contrary, Goldsmith argues that precedent and § 107 itself require a general analysis of purpose. Id. at 34–35. Finally, Goldsmith notes that AWF does not address the other three factors in the fair use analysis at all. Id. at 35. Goldsmith emphasizes that fair use is a holistic analysis of all four factors and this case should not be decided on the first factor alone. Id.
BALANCING COPYRIGHT’S ECONOMIC AND SOCIAL JUSTICE OBJECTIVES
Floor64, Inc., in support of AWF, argues that too great an extension of copyright holders’ reach in original works gives them “effective veto power over follow-on works, including those that would convey new meanings not in the original.” Brief of Amicus Curiae Floor64, Inc., in Support of Petitioner at 8. If follow-on works with meanings different from original works are subject to the “monopolistic control” of the original copyright holder, Floor64 asserts, new forms of expression will be seriously constrained. Id. at 11. Floor64 emphasizes that in such an environment, copyright holders would be able to censor future expression in a manner far more extensive than necessary to preserve original copyright holders’ economic incentives. Id. at 13. Floor64 contends that such a problem would span generations, as a living artist could find their expression foreclosed by the estate of a dead copyright holder who, for obvious reasons, can no longer be incentivized to create any additional expression. Id. at 16.
The Institute for Intellectual Property and Social Justice (“The Institute”), in support of Goldsmith, asserts that copyright law’s current economic goals are overly narrow. Brief of Amici Curiae Institute for Intellectual Property and Social Justice et al., in Support of Respondent at 16. Rather than viewing these goals through a “narrow lens of economic utility,” the Institute advocates for a broader view of copyright law’s goals that includes advancing social justice aims. Id. at 15–16. The Institute contends that under the current copyright regime, secondary creators from dominant social groups are given too much leniency in determining whether their works are fair use. Id. at 19. This leniency, the Institute explains, leads to marginalization because fair use inquiries are typically judged by other members of the same dominant majority, who are more inclined to accept secondary creators’ assertions that they intended to transform preexisting works, while marginalized artists’ commercial prospects are subjected to majoritarian judges’ “cultural tastes and racial biases.” Id. Accordingly, the Institute argues for a more objective test asking “whether a secondary work subordinates, subverts, or extinguishes the message of a preexisting work,” rather than asking “whether the secondary work ‘adds something new, with a further purpose or different character.’” Id. at 22. Such a test, the Institute asserts, mitigates socially unjust effects by insulating courts from the subjective, majoritarian influences that reinforce dominant racial and cultural biases. Id.
IMPACT ON CREATIVE EXPRESSION
The Robert Rauschenberg Foundation (“The Foundation”), in support of AWF, argues that a narrowed version of the fair use doctrine will disincentivize artistic development. Brief of Amici Curiae Robert Rauschenberg Foundation et al., in Support of Petitioner at 26. The Foundation emphasizes that much current art relies on the appropriation of past works. Id. If the types of art classified as fair use were reduced, the Foundation stresses, more artwork would become the subject of copyright litigation, thereby discouraging its creation. Id. at 27. Furthermore, the Foundation warns, museums and galleries would face liability for displaying allegedly infringing art. Id. Given that many of these institutions are already struggling, the Foundation continues, these risks would disproportionately burden smaller museums and galleries which provide local art education and access to art to most Americans. Id. at 27–28. Accordingly, the Foundation concludes, expanding copyright liability would suppress the creativity that the Copyright Act is supposed to foster. Id. at 28. Expanded liability is especially problematic, a cohort of artists, art teachers, and curators argue, because most artists lack the resources necessary to support litigation. Brief of Amici Curiae Artists, in Support of Petitioner at 38–39.
Philippa S. Loengard, the Executive Director of the Kernochan Center for Law, Media, and the Arts, in support of Goldsmith, argues that focusing on visual art’s purpose and character rather than its message or meaning supports free expression. Brief of Amici Curiae Philippa S. Loengard et al., in Support of Respondent at 20. Different works’ purpose and character, Loengard explains, can be more objectively compared by a district court because specific visual differences between the two pieces can be easily identified and distinguished, leaving less room for courts to draw speculative inferences. Id. at 24. Loengard agrees that borrowing from past works is an essential component of visual art. Id. at 20. Accordingly, Loengard argues, creative expression will remain if artists are free to borrow from past works while meaningfully changing their final products’ purpose and character in an objectively identifiable way. See id. at 24–25. Therefore, Loengard concludes that focusing on works’ purpose and character will strike an effective balance between preserving creative development by third parties and ensuring artists whose work is used in that development receive fair compensation for others’ uses of their works. Id. at 27.
- Sarah Cascone, Barbara Kruger, Robert Storr, and the U.S. Copyright Office Have Filed Briefs in the Supreme Court’s Historic Andy Warhol Copyright Case, Artnet News (Aug. 25, 2022).
- Adam Liptak, Warhol’s Images of Prince: Social Commentary or Copyright Infringement?, The New York Times (Aug. 15, 2022).
- Deirdre M. Wells, William H. Milliken, and Kristina Caggiano Kel, Will Supreme Court apply the same 'transformative' analysis to a photograph as it did to software?, Reuters (Aug. 29, 2022).
- Marissa Wu, US Copyright Office sides with photographer in Warhol infringement case, Pop Photo (Aug. 17, 2022).