In a May 18, 2023, decision, the U.S. Supreme Court revisited the scope of artists’ “transformative” fair use under U.S. copyright law. In Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith, et al., the Court held that the Andy Warhol Foundation for the Visual Arts, Inc. (the “Foundation”) infringed photographer Lynn Goldsmith’s copyright when the Foundation licensed a Warhol silkscreen derived from a Goldsmith photograph of Prince for publication as an illustration for a commemorative magazine about the musician. This is a far narrower ruling than many in the art world had feared. The case has been closely watched, including by artists, collectors, museums, and art dealers, and the response to the decision in the art press has reflected the existing debate and anxiety over appropriation art and transformative fair use.
The factual background in this case is particularly important to understanding the decision and its scope. In 1981, Newsweek hired photographer Lynn Goldsmith to photograph the then-emerging musician Prince. Newsweek printed one of Goldsmith’s photographs with its article on Prince. In 1984, Goldsmith granted a license to Vanity Fair for use of one of her Prince photographs, on a one-time-only basis, for use as an “artist reference for illustration.” The artist Vanity Fair hired was Andy Warhol, whose purple silkscreen portrait of Prince (“Purple Prince”) appeared in the magazine’s November 1984 issue. Unknown to Goldsmith, Warhol produced a series of 15 additional Prince images, including what has come to be known as Orange Prince (the 16 works are referred to as the “Prince Series”). The series consists of 14 silkscreen prints (12 on canvas and two on paper) and two pencil illustrations. After Warhol died in 1987, the administration of Warhol’s works, including the Prince Series, passed to the Foundation. The Foundation sold 12 of the Prince Series works and transferred custody of the remaining four to the Andy Warhol Museum in Pittsburgh. Although it no longer owns the Prince Series, the Foundation nevertheless holds the copyrights to Warhol’s works and licenses the images.
After Prince’s death in 2016, Vanity Fair parent company Condé Nast licensed Orange Prince from the Foundation for use in a special Prince commemorative magazine. Goldsmith first learned of the Warhol Prince Series when she saw the commemorative edition. She notified the Foundation that she believed the licensing had infringed her copyright. The Foundation sued Goldsmith in the U.S. District Court for the Southern District of New York, seeking a declaratory judgment of noninfringement. Goldsmith countersued for copyright infringement.
The District Court granted summary judgment in favor of the Foundation, holding that, while Warhol did use Goldsmith’s photograph, that use was protected under the defense of fair use. On appeal, the U.S. Court of Appeals for the Second Circuit reversed, holding that each of the four, nonexclusive statutory “fair use” factors favored Goldsmith and that the Foundation had “not identified any additional relevant considerations.”
Appropriation in Art
Borrowing and influence, to a greater or lesser degree, has long been present in art. Appropriation is a subset of artistic borrowing and influence. The Museum of Modern Art defines “appropriation” as “the intentional borrowing, copying, and alteration of existing images and objects.” Visual artists’ use of pre-existing and in many instances copyright-protected images and objects has become an integral element of much 20th and 21st century art, including the use of found objects by the Dadaists and the use of collage by the Surrealists and the Cubists. With the expansion of advertising and consumer culture after the Second World War, and a renewed critique of the distinction between high art and popular culture, many artists increasingly incorporated appropriated images into their work, particularly artists associated with the Neo-Dada, Pop Art and Pictures Generation movements. The proliferation of photography, film, video, digital image production and manipulation, including social media, have provided artists with both an expanding array of tools to use and a pervasive environment on which to comment. For some artists, a critique of the tension between copyright and fair use (and a critique of the concept of originality and authorship) has even become a central theme in their work.
Fair Use and “Transformative” Use
The fair use doctrine developed in common law as an affirmative defense to copyright infringement. Although the first U.S. copyright act, enacted in 1790, did not include a fair use defense, the principle soon emerged, in response to the need for some flexibility in subsequent authors’ and artists’ use of prior copyright-protected works. Copyright encourages creative activity, but with respect to fair use (at least for visual art), the balance to be struck is between a copyright holder’s rights in a source image and the rights of a later artist making use of that source image. Congress codified fair use in Section 107 of the Copyright Act of 1976 (the “Copyright Act”). While Sections 106 and 106A of the Copyright Act identify the exclusive rights granted to a copyright holder (including the right to make derivative works) and the right to attribution and integrity, Section 107 places limitations of those exclusive rights. The preamble to Section 107 provides that “[n]otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work…, for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research, is not an infringement of copyright.”
Section 107 identifies four non-exclusive factors courts are to consider in evaluating a claim of fair use. Those factors are: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
The consideration of what makes a use of a prior work “transformative” gained prominence with the Court’s 1994 decision in Campbell v. Acuff-Rose, a case arising out of 2 Live Crew’s parodic use of Roy Orbison’s “Pretty Woman.” Discussing the first fair use factor, the Campbell Court stated that “[t]he central purpose of this investigation is to see…whether the new work merely ‘supercede[s] the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asked, in other words, whether and to what extent the new work is ‘transformative’.”
While the lower courts addressed all four fair use factors, the issue presented to the Court was limited to the first factor alone – the purpose and character of the use. Originally, the Foundation had sought a broad declaratory judgement that the Prince Series is non-infringing fair use. However, as the Court acknowledged, the issue before it was far narrower, since “Goldsmith has abandoned all claims to relief other than her claim as to the 2016 Condé Nast license and her request for prospective relief as to similar commercial licensing.” Justice Sotomayor, writing for the Court, observed that “the first fair use factor…focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism….Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.”
The Court looked to whether the specific challenged use of the source image was sufficiently different from the exclusive rights granted to the copyright holder, which include the right to make derivative works. In this instance, the challenged use was not Warhol’s creation of the Prince Series, but the Foundation’s licensing of Orange Prince as an illustration for a magazine about Prince. The Court reasoned that Goldsmith not only could, but frequently did, license her photographs of musicians to publications for use as illustrations. The Court further reasoned that Goldsmith also had the right to make and license derivative works based on her photographs. On this view, Warhol’s Orange Prince was an unauthorized derivative work that was licensed in precisely the same manner as Goldsmith’s own photographs (and any derivative works she may have elected to make) were licensed. As such, Orange Prince acted as a substitute for Goldsmith’s own protected work. The Court observed that “the first factor … requires an analysis of the specific ‘use’ of a copyrighted work that is alleged to be ‘an infringement.’…The same copying may be fair when used for one purpose but not another” (italics added).
The Court concluded that “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to produce derivative works that transform the original…. Goldsmith’s original photograph of Prince, and [the Foundation’s] copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.”
Justice Kagan’s dissent focuses on the art critical and art historical distinctions between Goldsmith’s photograph and Warhol’s silkscreened image, finding Warhol’s work to be undeniably transformative. In particular, the dissent’s description of Warhol’s artistic process is fascinating and informative. The dissent strongly disagrees with what it regards as the majority’s dismissal of the ways in which Warhol transformed the source photograph. “[T]he majority,” Justice Kagan writes, “maintains that all those contributions, even if significant, just would not matter. All of Warhol’s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion.”
Whether the Court’s decision results in an increase in artists’ licensing source material for uses similar to the original or whether it has a chilling effect on appropriation art remains to be seen. It is important to take note of the Court’s significant distinction between what the decision decides and what it does not. “In particular,” the Court states, “the Court expressed no opinion as to the creation, display, or sale or any of the original Prince Series works.” Justice Gorsuch’s concurrence expands on this point, carefully noting that “It is equally important…to acknowledge what this case does not involve and what the Court does not decide….[W]hile our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. But those cases are not this case….[O]ur only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol’s work, that does not mean it always will. Under the law Congress has given us, each challenged use must be assessed on its own terms.”
The Court’s decision identifies a nuance within the first fair use factor: while a transformative derivative work may be fair use for some uses, it may not be fair use for all uses. One thing is clear: this will not be the last time the Court considers transformative fair use.
 Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith, et al., 598 U.S. ___ (2023). The decision was 7-2. Justice Sotomayor wrote the majority opinion; Justice Gorsuch wrote a concurrence, which was joined by Justice Jackson; and Justice Kagan wrote a dissent, which was joined by Chief Justice Roberts.
 See, e.g., Jerry Saltz, “Warhol Against the Supreme Court and Beyond,” Vulture, May 20, 2023 (“Copyright is all but dead in practice….The idea of originality is changing, expanding, and there’s no way to put all these genies back into the bottle.”); “Supreme Court Rules Against Warhol Foundation in Landmark Copyright Case,” Artforum, May 18, 2023; Carolina A. Miranda, “What the Supreme Court’s Andy Warhol decision could mean for art,” Lost Angeles Times, May 20, 2023 (raising concern about the effect of the decision on the exhibition and sale of the original Prince Series works); Blake Gopnik, “Ruling Against Warhol Shouldn’t Hurt Artists. But It Might.” The New York Times, May 19, 2023 (“At the very least, the ruling won’t send museums rushing to consign the appropriations they own to the dark depths of the vaults, as a more sweeping ruling against Warhol might have done. So long as appropriation artists aren’t selling licenses for their creations to be reproduced – for instance, in a popular magazine – the Supreme Court’s new decision should not affect them.”).
 Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith, et al., 382 F. Supp. 3d 312, 316 (SDNY 2019).
 Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith, et al., 11 F.4th 26, 51 (2d Cir. 2021).
 MOMALearning website, entry on “appropriation”; see also Tate website, entry on “appropriation” (“Appropriation in art and art history refers to the practice of artists using pre-existing objects or images in their art with little transformation of the original.”).
 See, e.g., MOMALearning website, article on Cubism; The Art Story, article on Synthetic Cubism and collage (“Through experiments in collage using newspaper print and printed patterns, the Synthetic Cubists moved away from the multi-perspective (Analytic) approach in favor of “flattened out” images that all-but dispensed with their earlier allusions to three-dimensional space. Synthetic Cubism embraced a broader palette, simpler geometric planes, and more representable subject matter too. To achieve its ends, Synthetic Cubism brought together – or “synthesized” – a variety of mixed media through collage and its signature papier collé technique.”).
 See, e.g., Tate website, article on Neo-Dada; The Art Story, article on Neo-Dada (“Encouraging the shift toward the viewer as part of the artwork, many Neo-Dada artists adhered to a notion that the viewer’s interpretation of a work – not the artist’s intent – determined its meaning. This was emphasized through the use of chance, found objects, and mass media, which helped eliminate the artist’s predetermined significance and instead placed the focus on the viewer’s reading of the piece.”).
 See, e.g., Tate website, article on Pop Art; The Art Story, article on Pop Art (“By creating paintings or sculptures of mass culture objects and media stars, the Pop Art movement aimed to blur the boundaries between “high” art and “low” culture. The concept that there is no hierarchy of culture and that art may borrow from any source has been one of the most influential characteristics of Pop Art…. Pop artists were the first to recognize that there is no unmediated access to anything, be it the soul, the natural world, or the built environment. Pop artists believed everything is inter-connected, and therefore sought to make those connections literal in their artwork.”).
 See, e.g., Eklund, Douglas. “The Pictures Generation.” In Heilbrunn Timeline of Art History. New York: The Metropolitan Museum of Art, 2000–(October 2004) (“The famous last line of Barthes’ essay [“The Death of the Author,” 1967], that “the birth of the reader must be at the cost of the death of the author,” was a call to arms for the loosely knit group of artists working in photography, film, video, and performance that would become known as the “Pictures” generation, named for an important exhibition of their work held at Artist’s Space in New York in 1977.”).
 17 U.S.C. §§ 107.
 17 U.S.C. §§ 107(1)-(4).
 Campbell v. Acuff-Rose, 510 U.S. 569 (1994).
 Id. at 579 (quoting Justice Joseph Story opinion in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). In its analysis of transformativeness, the Campbell Court also relied on a law review article by Pierre N. Level, “Toward a Fair Use Standard,” 107 Harv. L. Rev. 1105 (1990).
 Andy Warhol Foundation for the Visual Arts, Inc., v. Goldsmith, et al., 598 U.S. ___ at *21 (2023).
 Id. at *12.
 Id. at *20.
 Id. at *38.
 Id., dissent at *9 (“It does not take an art expert to see a transformation – but in any event, all those offering testimony in this case agreed there was one.”).
 Id., dissent at *18.
 Id. at *21.
 Id., concurrence at *5-6.