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 a Warhol silkscreen of Prince to a magazine for $10,000, because that specific commercial use served substantially the same purpose as Goldsmith's original photo.
The decision clarifies that adding new artistic expression or meaning to a copyrighted work does not automatically make that use 'transformative' under copyright law — the purpose of the actual commercial transaction matters most, and artists who build on others' work for similar commercial ends still need permission.
How it got here: A federal district court granted AWF summary judgment on fair use; the Second Circuit reversed, ruling all four fair use factors favored Goldsmith; the Supreme Court agreed to hear the case limited to the first fair use factor only.
The Case in Depth
What happened
Lynn Goldsmith, a professional photographer, took a copyrighted black-and-white portrait of Prince in 1981. In 1984, Vanity Fair licensed the photo for Andy Warhol to use as a one-time artist reference. Warhol secretly created 16 additional silkscreen portraits from the photo — the "Prince Series." After Prince died in 2016, the Andy Warhol Foundation licensed one of those images, "Orange Prince," to Condé Nast for $10,000 to appear on a commemorative magazine cover. Goldsmith received nothing and had not consented to the expanded use.
The question before the Court
Can an artist's foundation avoid paying a photographer for using her copyrighted portrait of Prince as the basis for a Warhol silkscreen — arguing that Warhol's artistic transformation of the photo qualifies as "fair use" under copyright law?
The Court's answer
No — the Court ruled that the Andy Warhol Foundation's commercial licensing of Orange Prince to Condé Nast does not qualify for protection under the first fair use factor. Both Goldsmith's photo and AWF's licensed image were portraits of Prince used in magazines to illustrate stories about Prince, so they shared substantially the same purpose. Combined with the undisputed commercial nature of AWF's use, the first factor weighs in Goldsmith's favor.
The Court rejected AWF's argument that Warhol's new artistic expression or commentary on celebrity culture automatically made the use "transformative." Adding new meaning or message is relevant but not by itself decisive — the degree of difference in purpose must be weighed against commercialism. Because the copying served essentially the same commercial purpose as the original photograph, and AWF offered no other compelling justification for using Goldsmith's work without permission, the first factor did not favor fair use.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Photographers, musicians, and other creators get stronger copyright protection against unlicensed commercial use of their work, even by celebrated artists. Foundations, publishers, and anyone who licenses derivative works commercially will need to think more carefully about whether their use serves the same market purpose as the original — and pay licensing fees when it does.
What changes now
The Second Circuit's ruling that the first fair use factor favors Goldsmith is affirmed. AWF did not challenge the Second Circuit's rulings on the other three fair use factors, all of which also favored Goldsmith, so Goldsmith wins the overall fair use defense. The case may return to lower courts on any remaining damages or remedial issues, but the liability question on the 2016 Condé Nast license is resolved against AWF. Future commercial licensing of similar Prince Series images would face the same analysis.
What this does not decide
The Court expressly declines to decide whether creating, displaying, or selling the original Prince Series artworks (as opposed to licensing them commercially) constitutes infringement or fair use. It also does not resolve any broader question about what other uses of the Prince Series might qualify as fair use — only the specific 2016 Condé Nast licensing transaction is at issue.
Concurrences and dissents
Concurrence — Justice Gorsuch
Justice Gorsuch agreed with the majority but wrote separately to emphasize that the first fair use factor is a straightforward statutory question about the specific challenged use — not an invitation for courts to evaluate an artist's intentions or the aesthetic quality of the resulting work. He stressed that the statute asks only whether the purpose and character of the challenged use complements or substitutes for the copyrighted work, and that this narrow reading coheres with the copyright statute's other provisions protecting derivative works and the fourth factor's focus on market effects.
Dissent — Justice Kagan
“It will stifle 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 broader consequences of the majority's approach to transformative copying.
Justice Kagan argued that the majority fundamentally misread Campbell v. Acuff-Rose and Google v. Oracle, both of which held that adding significant 'new expression, meaning, or message' to a work is the heart of the first-factor transformativeness inquiry. In her view, Warhol's silkscreen — with its dramatic changes in aesthetics, form, and message about celebrity culture — plainly transformed Goldsmith's photo, and the majority's focus on the commercial licensing transaction improperly collapses the first factor into the fourth. She warned the decision will inhibit creative progress by preventing artists from building on prior works whenever they seek to sell the results.
How the Court got there
The legal reasoning, step by step
- The first fair use factor — 'the purpose and character of the use' under 17 U.S.C. § 107(1) — asks whether a secondary use merely replaces the original or instead has a further purpose or genuinely different character. 'Transformativeness,' the term courts use when a secondary use has a distinct purpose, is a matter of degree, and must be weighed against the commercial nature of the use.
- The Court drew on its 1994 decision in Campbell v. Acuff-Rose Music (the parody case) to explain that new expression, meaning, or message can be relevant but is not by itself enough — otherwise, the first factor would effectively swallow the copyright owner's exclusive right to prepare derivative works, since most derivative works add some new expression.
- The Court narrowed its analysis to the specific challenged act: AWF's 2016 commercial licensing of Orange Prince to Condé Nast for a commemorative Prince magazine cover — not the original creation or display of the Prince Series. The fair use inquiry turns on what actually happened with the work, and the same copying can be fair in one context but not another.
- Measured against the specific challenged use, both Goldsmith's photo and AWF's licensed image were portraits of Prince sold to magazines to accompany stories about Prince. That shared purpose — portrait of celebrity, used in a magazine story about that celebrity — is not a 'further' or 'different' purpose. The use therefore did not supersede the commercial objects of Goldsmith's photo; it competed directly with them.
- AWF argued that Warhol's silkscreen conveyed a different message (Prince as an iconic, larger-than-life figure rather than a vulnerable person) and commented on the dehumanizing effects of celebrity culture. The Court acknowledged that meaning or message is relevant, but held that this commentary had no 'critical bearing' on Goldsmith's photograph itself — unlike parody, which must mimic the original to make its point, AWF's asserted social commentary could stand on its own without copying Goldsmith's work.
- Because the two uses shared substantially the same commercial purpose and AWF offered no other compelling independent justification for copying, the first fair use factor favored Goldsmith. The Court left AWF's challenge to the other three factors — all of which the Second Circuit had also ruled against AWF, rulings AWF did not contest — undisturbed.
Doctrinal impact
Cases affected by this decision
Reaffirms Campbell v. Acuff-Rose Music, Inc. (510 U.S. 569)
The Court applies Campbell's transformativeness framework but clarifies that new expression or meaning alone does not automatically satisfy the first fair use factor.
Distinguishes Google LLC v. Oracle America, Inc. (593 U.S. ___)
Google's transformative use involved a genuinely distinct computing environment and necessary copying; AWF's commercial licensing served the same purpose as the original photograph.