Warhol v. Goldsmith SCOTUS decision review

The Supreme Court ruled today in favor of Linda Goldsmith against the Andy Warhol Foundation.

In the majority opinion, Justice Sotomayor explained that the decision was rooted in the fair use factor considering the “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”

The Court found that “Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.” In doing so, it held that Warhol’s use of Goldsmith’s photograph achieved largely the same commercial ends as simply using Goldsmith’s photo itself.

The opinion also stated that “Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor. Nor does it distinguish AWF from a long list of would-be fair users: a musician who finds it helpful to sample another artist’s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few.”

Therein lies the crux of this case. AWF’s case seemed to be based on the conclusion that transforming one work into another means that the junior work is inherently fair use. The majority retorts, “It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers.”

Dissenting, Justice Kagan (joined by Justice Roberts) took a different approach to the underlying issues. Resting more on the meaning purpose, and characteristics of Warhol’s art, the dissent believes that “the majority hampers creative progress and undermines creative freedom.”

In the concurring opinion, Justice Gorsuch (joined by Justice Jackson) refutes the dissent’s approach, stating that “Nothing in the copyright statute calls on judges to speculate about the purpose an artist may have in mind when working on a particular project. Nothing in the law requires judges to try their hand at art criticism and assess the aesthetic character of the resulting work.”

In a move which even the dissent calls unusual, the majority responds directly to the dissent. The Court emphatically claims that the dissent was based on “no theory” and “no reason.” It states that the dissent “ignores the statute’s focus on the specific use alleged to be infringing” and “waves away the statute’s concern for derivative works.”

What do you think? Did the court get it right?

Note: this was adapted from a LinkedIn post predating TechnoLegal.

Image credit: Left: A 2016 Vanity Fair cover featuring Andy Warhol's image of Prince. Right: Lynn Goldsmith's 1981 photograph of Prince, which was a basis for Warhol's image. (Source: court documents, SCOTUSblog).