Copyright Infringement: Analyzing the Implications of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
By: Jeffrey E. Jacobson with Madelyn Feyko
This Supreme Court copyright case involves not one, but two artists. This is the most recent case where the Supreme Court addresses the fair use defense.
The first artist, Andy Warhol, is well known. His images of products like Campbell’s soup cans and of celebrities like Marilyn Monroe appear in museums around the world. Warhol’s
contributions to contemporary art are undeniable. The second, Lynn Goldsmith, is less well known. But she too is a trailblazer. Goldsmith began her career in rock-and-roll photography
when there were few women in the genre. Her award-winning concert and portrait images, however, shot to the top.
Goldsmith licensed her studio photograph of, then rising star, Prince to Vanity Fair in 1984. After Prince passed away in 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed an image of “Orange Prince”—an orange silkscreen portrait of the musician Prince created by Andy Warhol—to appear on the cover of a Vanity Fair special edition magazine. AWF created and licensed 15 additional prints using Goldsmith’s photograph, a black and white portrait of Price, at issue in this case.
Copyright Law and Fair Use
Fair use is a flexible concept which is a defense to a copyright infringement claim. Its application will vary depending on context. To determine if a use is a fair use, the court considers
four factors under 17 U.S.C. §107: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value
of the copyrighted work.
Fair Use Doctrine: First Factor Analysis
Although the Court of Appeals had previously analyzed each of the fair use factors, the only issue before the Supreme Court was whether the court below correctly held that the first
factor §107(1) stating “…the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” weighed in Goldsmith’s favor.
The first factor considers the reasons for and nature of the use of a work. The central question asked here is whether the new work transforms the proir work into something with a further purpose or different character. Furthermore, it examines whether the use at issue has a purpose or character different from the original. The greater the difference, the more likely the
first factor weighs in favor of fair use. The smaller the difference, the less likely. A use that has a different character is said to be “transformative.” In 1994, the Court previously found that the 2
Live Crew’s infringement was excused as a “fair use” due to the transformative nature of their song, “Pretty Woman.” The degree of difference must be balanced with the other factors to
determine fair use.
The Court’s Opinion
Here, the Court decided the specific use of Goldsmith’s original photograph in the original magazine story about Prince and the subsequent use in the special edition were used for
substantially the same purpose resulting in an infringement. Moreover, AWF’s use was of a commercial nature. Even though Orange Prince added new expression to Goldsmith’s
photograph, in the context of the challenged use, the first fair use factor still favored Goldsmith. Notwithstanding, the use of Goldsmith’s licensed work resulted in a significant loss of revenue in
addition to the million dollars in legal fees she incurred. It is yet to be determined if she will recover them.
Ultimately, the Court found that Goldsmith’s original works, like those of other photographers, were entitled to copyright protection and enforced the exclusive rights. Such protection includes the right to prepare derivative works that transform the original. This decision solidifies that economic factors in infringement cases are the most important factors to consider.