Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith
The Supreme Court ruled that the Andy Warhol Foundation infringed photographer Lynn Goldsmith's copyright when it licensed Warhol's silkscreen portrait of Prince to a magazine, because both the original photo and the licensed artwork served the same basic commercial purpose.
The decision narrows the 'fair use' defense for artists and their estates who commercially license work derived from someone else's copyrighted image, strengthening the rights of photographers and other original creators.
How it got here: A federal district court granted the Warhol Foundation summary judgment on fair use; the Second Circuit reversed on all four fair use factors; the Foundation petitioned the Supreme Court, which agreed to review only the first fair use factor.
The Case in Depth
What happened
Lynn Goldsmith, a professional photographer, took a portrait of Prince in 1981. In 1984, Vanity Fair licensed the photo once for Andy Warhol to use as an artist reference. Warhol secretly created 16 additional silkscreen portraits from the same photo. After Prince died in 2016, the Andy Warhol Foundation licensed one — an orange silkscreen called Orange Prince — to Condé Nast for $10,000 for a commemorative magazine cover. Goldsmith received nothing and had never consented to that use.
The question before the Court
When an artist transforms a copyrighted photograph into a dramatically different silkscreen portrait and that portrait is later commercially licensed to a magazine, does the artistic transformation shield the licensor from copyright liability?
The Court's answer
No — adding new artistic expression to a copyrighted photograph does not automatically shield a commercial licensing of the resulting work from copyright liability. The Court ruled that the first factor of copyright's fair use test — which asks about the "purpose and character" of the use — favored Goldsmith. Both the original photograph and Orange Prince served substantially the same purpose: a portrait of Prince used in a magazine to accompany a story about Prince. That shared purpose, combined with the plainly commercial nature of the licensing deal, meant the first factor weighed against the Foundation.
The Court rejected the argument that Warhol's silkscreen was "transformative" simply because it conveys a different artistic message. Adding new expression alone is not enough — the use must have a sufficiently distinct purpose or character, and an independent justification for borrowing from the original. The Court was careful to rule only on this specific licensing transaction; it expressly reserved judgment on whether the original creation, display, or sale of the Prince Series works would also be infringement.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Photographers and other original creators now have stronger grounds to demand payment when their work is used as a basis for later art that is then commercially licensed for similar purposes. Artists and estates who build on copyrighted images and license the result to magazines or other commercial outlets may need permission — and must pay — the original creator, even when the secondary work looks dramatically different.
What changes now
With all four fair use factors favoring Goldsmith — the Foundation contested only the first before the Supreme Court, and the Second Circuit resolved the others in Goldsmith's favor — the Foundation's fair use defense fails. The case may return to lower courts to resolve remaining questions about Goldsmith's infringement claim and any damages owed. The ruling applies only to the 2016 Condé Nast licensing; other uses of the Prince Series works were not decided.
What this does not decide
The Court expressly declined to decide whether Warhol's original creation of the Prince Series, or the display or sale of those works as artworks, would constitute fair use. It ruled only on the Foundation's 2016 commercial licensing of Orange Prince to Condé Nast. Future uses in different contexts — such as display in a museum or inclusion in an art-history publication — may be analyzed differently.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch wrote separately to emphasize that the first fair use factor is a focused textual inquiry into the specific challenged use — not into the artist's creative intent or the aesthetic quality of the resulting work. He identified three signals in the statute confirming this reading: the preamble's illustrative examples, the copyright holder's exclusive right to create derivative works, and the fourth factor's market-effect inquiry. He also stressed that the case does not require the Court to weigh the broader tradeoff between rewarding creators and enabling follow-on creativity — that balance is Congress's job.
Dissent — Justice Kagan
“It will stife creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”Justice Kagan's closing warning about the damage the majority's ruling will inflict on artistic progress and creative culture.
Justice Kagan argued the majority fundamentally misreads the first fair use factor by reducing it to a check on commercial licensing and ignoring the significant creative transformation Warhol achieved. Under the Court's own precedents in Campbell and Google, she said, a use that substantially alters the original with new expression, meaning, and message — as Warhol's silkscreen undisputedly did — should count powerfully in favor of fair use. By instead treating the commercial licensing as dispositive, the majority suppresses transformative creativity, undermines copyright's core goal of promoting artistic progress, and departs from established law.
How the Court got there
The legal reasoning, step by step
- The first factor of copyright's fair use defense asks whether a secondary use merely serves the same purpose as the original — 'supplanting' it — or has a further purpose or different character. This is a matter of degree: the bigger the difference in purpose or character, the more the factor favors the copier. A use that shares the original's purpose is more likely to substitute for it and thus weighs against fair use.
- The Court limited its analysis to the specific use alleged to be infringing: the Foundation's 2016 commercial licensing of Orange Prince to Condé Nast — not Warhol's original creation of the works decades earlier. The same copied material can be fair use for one purpose and infringement for another; the Court expressly declined to rule on any other use of the Prince Series.
- Looking at that specific use, both Goldsmith's photograph and the licensed silkscreen served substantially the same purpose — portraits of Prince placed in magazines to illustrate stories about Prince. The Court rejected the argument that the purpose should be defined more narrowly based on the silkscreen's distinctive aesthetic or social commentary; at the relevant level of description, both images did the same basic job for the same kind of publication.
- The Foundation's licensing deal was openly commercial — $10,000 to the Foundation, nothing to Goldsmith. Commercialism alone does not defeat fair use, but it is a named element of the first factor. When the purpose of the copying is also substantially the same as the original's, both elements point the same direction and weigh against fair use absent some other compelling justification for borrowing.
- The Foundation argued Warhol's silkscreen was 'transformative' because it adds new expression and meaning — portraying Prince as an iconic figure rather than a vulnerable person. The Court rejected this, holding that adding new expression or meaning alone is not enough. Accepting that argument would collapse the copyright holder's exclusive right to prepare derivative works, since virtually every adaptation adds some new expression.
- For the first factor to favor a copier whose use shares the original's purpose, the Court found some independent justification for borrowing is needed — such as commentary that specifically targets the original (as parody must). The Foundation's claimed commentary on celebrity culture had no critical bearing on Goldsmith's photograph itself, leaving AWF without a compelling reason to use her work rather than creating something else from scratch.
Doctrinal impact
Cases affected by this decision
Reaffirms Campbell v. Acuff-Rose Music, Inc. (510 U.S. 569)
The Court applied and affirmed Campbell's fair use framework while rejecting AWF's broader reading that any addition of new expression automatically qualifies as transformative.