U.S. Supreme Court Warhol Foundation Decision on Copyright Fair Use
SCOTUS: TRANSFORMATION ALONE IS NOT FAIR USE OF A COPYRIGHTED WORK
BY ELLIOTT ALDERMAN, ESQ.
ANDY WARHOL FOUNDATION FOR
THE VISUAL ARTS, INC. V. GOLDSMITH,
598 U.S. 508 (2023)
On May 18, 2023, the U.S. Supreme Court decided that Andy Warhol’s adaptation (called “Orange Prince”) of a copyrighted photograph of Prince, taken by noted music photographer, Lynn Goldsmith, infringed her work and was not fair use.1 Under the Copyright Act, the owner of a work has an exclusive bundle of rights, and secondary users have the burden of proof to show that their otherwise infringing adaptation of the owner’s work is excused as a fair use. The scope of fair use is a complex, fact-intensive, contextual inquiry.
Importantly, because the Andy Warhol Foundation (AWF) didn’t challenge the Second Circuit’s holding that the second through fourth fair use factors favored Goldsmith, the only issue before the Court was whether the first factor—“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,”2 weighed in favor of AWF’s commercial licensing of Orange Prince to Condé Nast…
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