Goldsmith v. Warhol, the Future of Fair Use, and Takeaways for the Remix Community
The Supreme Court recently released its hotly anticipated opinion in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, ruling in favor of Lynn Goldsmith.
Goldsmith, a professional portrait photographer, was commissioned in 1981 by Newsweek to take a photo of the rock musician Prince. In 1984, Vanity Fair paid Goldsmith $400 for a one-time limited license to use the photo as an “artist reference;” Goldsmith’s photo was then adapted by Andy Warhol into a series of silkscreen portraits. In 2016, following both Andy Warhol and Prince’s death, Condé Nast paid the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) $10,000 to publish one of those silkscreen portraits to accompany a story commemorating Prince’s life. Goldsmith did not receive any of the license money.
Left: Goldsmith’s original photograph.
Right: The portrait of Prince created by Warhol and licensed to Condé Nast in 2016, referred to in the opinion as “Orange Prince.”
Left: Goldsmith’s original photograph. Right: The portrait of Prince created by Warhol and licensed to Condé Nast in 2016, referred to in the opinion as “Orange Prince.”
Analyzing the case under the doctrine of Fair Use, 17 U.S.C. § 107, the only question before the Court was whether the first factor of the Fair Use test -- “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” -- weighed in Goldsmith’s favor.
If you only read the holding of the case, in which the majority held that the “purpose and character” of AWF’s use was not sufficiently “transformative” to weigh in AWF’s favor, you might justifiably be concerned. After all, the Supreme Court had, just a few years prior in Google LLC v. Oracle America, Inc., 593 U. S. ___, ___ (2021) (slip op. at 24-25), cited Andy Warhol out of all possible creators as the perfect artist to illustrate the concept of transformative copying. Warhol’s influence on modern art truly cannot be overstated – the way he recontextualized and stylized commercial images to produce startling new works that emphasized the larger-than-life nature of commodified celebrity. Was the majority walking back this protection? And if so, would this case mark the beginning of the end for remix artist protection under Copyright law? A close read of the majority opinion reveals that, as is often the case, the situation is a bit more nuanced than that.
It's Fair USE, not Fair WORK
Key to understanding this case is recognizing the narrowness of the question the Court is trying to answer. The majority is not actually ruling on whether the Warhol silkscreens themselves are protected by Fair Use – the Court very explicitly did not address that question. Rather, the majority focused instead on the use of these silkscreens after they were created – i.e., whether the specific act of licensing them to Condé Nast to sell their Prince retrospective – was fair.
This is a slight tweak on the way even seasoned copyright practitioners often think and talk about the Fair Use doctrine. We often think of works themselves as being protected or unprotected: 2 Live Crew’s song “Pretty Woman” is a “fair use” parody of Roy Orbison’s “Oh, Pretty Woman,” while an authorized trivia game based on the TV show Seinfeld was not fair. But the majority opinion stresses that analyzing whether a “use” is transformative requires additional context beyond just a comparison of the two works in a vacuum. Fair Use may apply when a person uses their new work in one context – say, when they repurpose a celebrity photograph as a work of visual art hung in a gallery – and not protected when used in another context – as was the case here, where AWF licensed the Prince silkscreen to Condé Nast for the primary purpose of showcasing Prince, the photographer’s original subject.
How Much “Transformativeness” is Enough?
The majority latched onto the language of 17 U.S.C. § 107(1), which asks courts to consider the “purpose and character” of a new use. The majority explained that weighing this factor is not a binary question of “was the purpose or character changed or not?” – arguably any work derived from a previous work changes the purpose or character of the underlying work in some way. Rather, evaluating this factor is a question of degree, like a spectrum:
HOW TRANSFORMATIVE?
Of course, it will be difficult for any court to quantify “transformativeness,” so it is important to dig deeper into what elements the majority was focused on here. Two elements in particular stood out:
Commercial nature. According to the majority, the fact that a new use is for-profit is relevant to the analysis, but not dispositive – after all, the 2 Live “Pretty Woman” case also involved a song parody that was commercially released, yet it was still held to be transformative parody. Rather, the commercial aspect of the use is one factor “to be weighed against the degree to which the use has a further purpose or different character.”
Commentary on the original (as opposed to commentary on something else). A well-established distinction in Copyright law is whether a given work is a “parody” – a work that mimics the original work to criticize, comment, or make fun of the original work – versus a “satire,” a work that mimics the original work to criticize, comment, or make fun of something else. This is why it’s actually technically incorrect to call a song like Weird Al’s “Eat It” a “parody” of Michael Jackson’s “Beat It” – changing MJ’s lyrics to be about food doesn’t really make a statement about MJ or the original song. It’s more accurate therefore to classify “Eat It” as a satire. (Notably, some other Weird Al songs actually would constitute a parody, such as when he rewrote Lady Gaga’s “Born This Way” as “Perform this Way” to poke fun at Gaga’s extravagant performance style.) Both parody and satire can constitute fair use, but parody is generally more protected under the law – as a policy matter, courts don’t think you should have to pay a person a copyright license before you can make fun of them.
Tying this back to the takeaway above – that a determination of Fair Use requires an analysis of the specific use of a work, not just the work itself – the majority in AWF v. Goldsmith held that in the context of the Condé Nast cover, Orange Prince was not making a substantial commentary on Goldsmith’s original Prince photo. Indeed, Condé Nast could have used Goldsmith’s original unaltered photo (as other magazines at the time did) to advertise their Prince retrospective just as easily as they could have used the Warhol silkscreen version. Sure, the Warhol version might have been more stylized and perhaps more expressive or effective, but the fundamental purpose of the two works, i.e., to draw consumers’ attention to Prince, was not that different.
Takeaways for Remixers
Contrary to the dissent’s concern that this ruling would stifle the creation of new transformative art, the majority assured readers that this was not the case. As always, context is critical, and a Fair Use analysis is extremely fact-sensitive. Nevertheless, this case does reinforce a few key lessons, especially for creators who regularly adapt existing works:
It makes a difference if you try to make money from it. The majority’s repeated mention of “commercialism” as a factor in its transformative analysis may seem out of left field, but it’s not. The Court here is tacitly acknowledging something that perhaps all artists recognize (whether consciously or subconsciously) – selling or licensing art for commercial purposes changes the fundamental purpose or character of that art.
If you do want to make money from it, get a license. Adapting, reworking, or remixing an artistic work, even with substantial new material, may not always relieve the remixer of a need to get a license. The key is whether such adaptation is, in the words of the court: “in service of a fundamentally different and new artistic purpose and character, [which] must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work.” Even if the overall aesthetic impact of the new work is wildly different from the original, there are situations where a license may still be required.
Reach out to Joe Newman, Olivia Clavio, or Jonathan Downing if you have questions about copyright or how this case affects you.