Today, the Supreme Court issued its decision in Andy Warhol Foundation v. Goldsmith--ruling against Warhol and imposing some serious limitations on copyright's fair use defense. We have been following this case closely, as it has significant implications for our clients--including documentary filmmakers, on whose behalf we submitted this amicus brief.
The initial reaction to the Warhol decision may have been a little extreme. Many reported that the Supreme Court ruled that Andy Warhol committed copyright infringement when he created a series of silkscreen images based on Lynn Goldsmith's photograph of the musician Prince. However, the Supreme Court did not opine on whether Warhol's creation of the original silkscreens was infringing. Instead, its inquiry was limited to whether AWF's commercial licensing of one of those images to Condé Nast was infringing. And here is where bad facts can make bad law.
This case presented an unusual fact pattern where the original work (Goldsmith's photo) and Warhol's image were licensed for nearly identical purposes--for use in magazines to illustrate stories about Prince. In 1984, Goldsmith’s agency licensed one of her Prince photographs to Vanity Fair magazine “for use as an artist reference” for an illustration. The artist Vanity Fair hired was Andy Warhol. Warhol made a silkscreen using Goldsmith’s photo ("Purple Prince"), which Vanity Fair published alongside an article about Prince. Unbeknownst to Goldsmith, Warhol also created 15 additional Prince silkscreens--a/k/a the "Prince Series." After Prince’s death, Condé Nast obtained a commercial license from the Andy Warhol Foundation ("AWF") for use of a different Prince Series image ("Orange Prince") on the cover of a Prince tribute magazine. No permission was sought from Goldsmith.
The question for the Supreme Court was whether AWF's commercial licensing of the Orange Prince to Condé Nast was permissible under the fair use doctrine--a defense to copyright infringement. Although the fair use analysis has four factors, the Supreme Court's decision focused solely on the first factor--whether Warhol's Orange Prince was sufficiently "transformative." For the past two decades, "transformative use" has been the sine qua non of fair use.
AWF argued that Warhol’s use of Goldsmith’s photograph was transformative because Warhol transformed Prince from a vulnerable, uncomfortable person” (as captured by Goldsmith) into an “iconic, larger-than-life” figure (as depicted by Warhol):
According to AWF, Warhol’s alteration “resulted in an aesthetic and character different from the original” and added “something new to the world of art.” The Second Circuit, however, disagreed. Although Warhol added his "signature style" to the Prince Series, it found that the Prince Series still "retain[ed] the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements."
The Supreme Court affirmed the Second Circuit's decision--though arguably on narrower grounds. The Court held that the "specific use of Goldsmith's photograph"--i.e., the licensing of Orange Prince to Condé Nast--was not "transformative" because the copying use was of a commercial nature that shared substantially the same purpose as Goldsmith's photograph. Although "Orange Prince add[ed] new expression to Goldsmith’s photograph", that was not enough. The Supreme Court could not look past the fact that the Orange Prince was used "as a commercial substitute" for Goldsmith's "protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician."
What does this mean for the original Prince Series works, or appropriation art more generally? And what does this ruling mean for documentary filmmakers and others that rely on using pre-existing, copyrighted material in their work? Will this decision "stifle creativity" and "impede new art and music and literature", as Justice Kagan lamented in her dissent? The Warhol decision leaves many unanswered questions, which we will attempt to grapple with in a series of upcoming blog posts.