June 15, 2023

U.S. Supreme Court Holds That First Factor of Fair Use Test Favors Photographer

"Purpose and Character" Factor Requires the Use of Another's Work to Be Sufficiently Distinct from the Original
Holland & Knight Alert
Robert J. Labate | Tanisha Pinkins | Cynthia A. Gierhart


  • In a 7-2 decision, the U.S. Supreme Court in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith held that pop artist Andy Warhol's use of a photograph of late music legend Prince without photographer Lynn Goldsmith's permission did not constitute fair use under the first factor of the fair use defense, relying largely on the fact that Warhol's use was not only for a similar purpose as the original, but was for a commercial purpose.
  • Visual works of art that are not "distinct enough" (transformative) will weigh against the artist who attempts to transform an "original work." Holding, "[t]o preserve that right (the right to transform a work of art), the degree of transformation required to make 'transformative' use of an original must go beyond that required to qualify as a derivative."
  • The Supreme Court decision relieves judges of the qualification to evaluate the aesthetic merits of a work of art, stating that fair use "is an objective inquiry into what a user does with an original work, not an inquiry into the subjective intent of the user, or into the meaning or impression that an art critic or judge draws from a work."
  • The Supreme Court ruling reinforces the principle that fair use will continue to be analyzed on a case-by-case basis. This opinion "does not mean that all of Warhol's derivative works, nor all uses of them, give rise to the same fair use analysis."

In a 7-2 decision, the U.S. Supreme Court in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith held that pop artist Andy Warhol's use of a photograph of late music legend and cultural icon Prince without photographer Lynn Goldsmith's permission did not constitute fair use under the first factor of the fair use defense, relying largely on the fact that Warhol's use was not only for a similar purpose as the original, but was for a commercial purpose.

While courts have struggled with fair use — i.e., lawful use of another's copyrighted work — the Warhol case reaffirmed some of the core purposes of the Copyright Act1 while clarifying others. This Holland & Knight alert explores how the Supreme Court's Warhol decision transforms the law of fair use and highlights its emphasis on the importance of analyzing the "purpose" and "character" of copyrighted works that are in dispute. 

Why This Case Is Important

The Warhol v. Goldsmith case is the first Supreme Court case in decades to tackle fair use. Fair use is a notoriously difficult analysis requiring a balancing of four factors that is highly dependent on the facts of each case. Therefore, any guidance on how to conduct a fair use analysis from the Supreme Court is closely watched. What the justices have decided could redefine fair use for major works of arts and social media posts, including addressing a major concern among music labels as copyrighted vocals from artists are being used — without authorization — to train artificial intelligence systems to incorporate artists' vocals into songs that they never recorded.

How Did We Get Here?

In 1984, Goldsmith granted Vanity Fair a "one-time use" license of her photograph of Prince for use as an artwork reference to accompany a Vanity Fair article about Prince. Unbeknownst to Goldsmith, the artist creating that work was the famous Warhol. Goldsmith also did not know that Warhol used her photograph to create 16 silkscreen portraits of Prince (not just the one licensed use), which came to be known as the Prince Series. After Prince died in 2016, Condé Nast — the magazine conglomerate that owns Vanity Fair — licensed from the Andy Warhol Foundation (AWF) the use of one of Warhol's Prince silkscreen portraits, "Orange Prince," on the cover of its commemorative edition magazine about Prince's life. Unlike the first time that Vanity Fair used the image, it did not obtain a license from Goldsmith nor include an attribution to her. Goldsmith became aware of the Prince Series only after the release of the 2016 Condé Nast publication and notified the foundation of her belief that it had infringed her copyright. In turn, AWF brought an action against Goldsmith seeking a declaratory judgment of noninfringement or, in the alternative, fair use, and Goldsmith counterclaimed for copyright infringement.

Procedural History

The Southern District of New York

In 2019, the U.S. District Court for the Southern District of New York granted summary judgment to AWF under its assertion of fair use and dismissed Goldsmith's claims with prejudice. With respect to transformative use under the first factor, the District Court held that Warhol's portrayal of Prince was for a different purpose or character from the photographer's, because the photographer portrayed him as an uncomfortable and "vulnerable human being," whereas Warhol depicted Prince as an "iconic, larger-than-life figure."

The Second Circuit

The U.S. Court of Appeals for the Second Circuit reversed and remanded, holding that all four fair use factors favored Goldsmith. Simply put, the Second Circuit ruled that the Orange Prince portrait is essentially a copy of Goldsmith's photograph and artists have rights to derivatives of their work. Furthermore, the Second Circuit determined that the photograph was not distinct enough and faulted the District Court for playing art critic by evaluating the aesthetic meaning of the art work in what the Second Circuit considered light alterations to Goldsmith's original photograph.

Following the Second Circuit's ruling, AWF appealed to the Supreme Court for certiorari to resolve whether an artist's use of a photograph of a singer as the basis for a series of artwork was protected as fair use under the Copyright Act, 17 U.S.C.S. § 107.

Copyright Law and Fair Use

There are two ways to use someone else's copyrighted works: 1) the use is licensed (used with permission) from the copyright holder, or 2) even without permission the use constitutes "fair use." There are four factors for determining fair use. No single factor is determinative; rather, they should be balanced and weighed against each other.

1. Purpose and character of the use, including:

a. whether the use is for a commercial versus educational or nonprofit purpose, and

b. whether the use is "transformative," that is, the user is commenting or reporting on the work, or the user creates a parody of the work, or the use is otherwise for a different character or purpose than the original work

2. Nature of the copyrighted work

a. creative (more protection) vs. factual

b. published vs. unpublished (more protection)

3. Amount and substantiality of the work used

4. The effect of the use on the potential market for or value of the copyrighted work

First Factor Analysis Under Fair Use Doctrine

This appeal created a fundamental question for the court to determine whether the first factor of the fair use test weighed in Goldsmith's favor.2 The first factor of the fair use doctrine directs a court to examine "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). Over time, the analysis of the first factor has largely turned into the following question: Is the new work transformative? That is, does the new work transform the prior work into something with an entirely different new meaning or message or, in the alternative, how much free reign will an artist have to take or use the work of others in pursuit of their own.

2 Live Crew Case: Landmark Decision

In a historic copyright opinion3 involving the hip-hop group 2 Live Crew and its parody of Roy Orbison's "Oh, Pretty Woman," the Supreme Court ruled that "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."4

In the 2 Live Crew case, the Court indicated that transformative use adds "new expression," "meaning" or "message" that's not found in the original work — which brings us back to Warhol's Orange Prince portrait.

Goldsmith claimed that she was trying to bring out Prince's humanity and vulnerability — the specificness of Prince as an individual. Alternatively, Warhol is known for turning the real into the mythical or iconic.

Did Warhol Transform Goldsmith's Photograph into a Work with an Entirely New Meaning and Message?

The Supreme Court held that Warhol's use of the photograph was not fair use, affirming the Second Circuit's decision. More specifically, the Court found Goldsmith's photograph and Warhol's Orange Prince portrait to have substantially the same commercial purpose because both were licensed for use in a magazine and that Warhol's Orange Prince photo was not distinct enough to be protected under fair use.

In so holding, the Court noted the natural correlation between the first and fourth factors.5 Determining whether a use has a similar purpose as the original use is naturally going to evoke the same question as the fourth factor, which is whether the use will divert revenue away from the original copyright holder to the person using the work. And that is what happened here: Goldsmith originally licensed her photograph to Vanity Fair for $400 in 1984 (and she was given attribution in the 1984 magazine), and then AWF licensed Orange Prince to the same magazine in 2016 for $10,000 — with Goldsmith receiving no revenue or attribution for the 2016 license.6

The Supreme Court also focused on the fact that Warhol's use of the photograph was not only for a similar purpose, but was for a commercial purpose (i.e., the $10,000 licensing payment). As the Court noted, "although a use's transformativeness may outweigh its commercial character, here, both elements point in the same direction."7 The commercial nature of this particular use seemed to play a large role in the Court's conclusion, and the Court noted repeatedly that its finding was specific to the facts at issue in this case, and this particular use of the work.

Tips to Avoid Copyright Infringement

  • Do not copy anything off the internet. It is not free to use simply because it is publicly available.
  • Remember, no single fair use factor is determinative of whether you can use the work. There is no bright line rule that allows a person to use three seconds of a sound or film clip. There is no bright line rule that allows a person to use any work so long as it's not for a commercial purpose. Each of those are factors that weigh in favor of fair use, but alone they are not determinative. One must always balance all of the considerations and should have nearly all four factors in their favor before considering the use as a "fair use."
  • Seeking permission or getting a license is always the surest way to reduce the risk of a potential infringement claim, especially if the use is commercial in nature.

For more information on the Supreme Court's decision or fair use factors, contact the authors.


1 Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (U.S. May 18, 2023).

2 Andy Warhol Foundation sought certiorari from the U.S. Supreme Court only on the first fair use factor; therefore, the Supreme Court considered only the first factor.

3 Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).

4 See Campbell 510 U.S. at 579.

5 See Goldsmith, 598 No. 21-869 at 24 n.12.

6 See Goldsmith, 598 No. 21-869 at 24.

7 Id. at 25.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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