SCOTUS Rules Andy Warhol’s Prince Portraits Are Not Fair Use
Published: May 25, 2023
In a closely watched copyright case, the U.S. Supreme Court ruled Thursday that Andy Warhol’s portraits of music legend Prince did not qualify as fair use under copyright law. The decision affirms a previous ruling by the Second Circuit, which found that Warhol’s artwork shared the same commercial purpose as the original photograph taken by photographer Lynn Goldsmith.
In a 7-2 decision, the high court sided with Goldsmith’s argument that Warhol’s “Orange Prince” constituted an infringing derivative work of her copyrighted photograph. The Andy Warhol Foundation contended that the artworks were transformative and gave new meaning to Goldsmith’s photo. However, the majority rejected this argument, stating that the new expression alone did not determine the purpose or character of the copying use.
Justice Sonia Sotomayor, writing for the majority, noted that both the original photograph and Warhol’s “Orange Prince” were portraits of Prince used in magazines to illustrate stories about him. She emphasized that both uses were commercial in nature, making them substantially similar in purpose.
The majority further argued that applying a broad interpretation of the fair use doctrine, as suggested by the Warhol Foundation, would undermine the copyright owner’s exclusive right to prepare derivative works. Justice Sotomayor highlighted the 1994 Supreme Court opinion in Campbell v. Acuff-Rose Music, which held that a work is transformative if it adds something new and has a different purpose or character. However, the majority stated that this precedent did not justify a broad application of fair use analysis.
In a strong dissent, Justice Elena Kagan and Chief Justice John Roberts criticized the majority’s lack of appreciation for the transformative nature of Warhol’s works. They pointed out that in the recent case of Google v. Oracle, the Supreme Court had described Warhol’s paintings as a “perfect exemplar” of transformative fair use. Justice Kagan argued that the majority’s ruling would have detrimental consequences for artists, particularly those who are less famous and unable to benefit from fair use protections.
Justice Sotomayor, in response to the dissent, accused it of creating a false equivalence between the Warhol Foundation’s commercial licensing and Warhol’s original creation. She asserted that the dissent failed to address the specific use alleged to infringe the copyright.
Justices Neil Gorsuch and Ketanji Brown Jackson filed a separate concurring opinion, emphasizing that copyright law does not require judges to speculate about an artist’s purpose when creating a work. They maintained that courts should focus on the purpose and character of the subsequent use of an original work. They were also clear that the ruling is limited to the interpretation of one factor of fair use analysis and does not address the broader question of balancing the rights of creators and those building upon their work, which is the responsibility of Congress.
This ruling marks the first time since 1994 that the Supreme Court has addressed the question of whether a creative work qualifies as fair use under federal copyright law. The lawsuit was initiated by the Andy Warhol Foundation in 2017 following allegations from Goldsmith that her image had been used without her knowledge. The district court initially ruled in Warhol’s favor, but the Second Circuit overturned the decision, leading to the final resolution by the Supreme Court.