In a decision closely watched by the visual arts community and content creators alike, the U.S. Supreme Court held on May 19, 2023, that pop artist Andy Warhol’s orange silkscreen portrait of the musician Prince (“Orange Prince”), adapted from photographer Lynn Goldsmith’s original photograph of Prince, was not “fair use” under copyright law. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. _ (2023).

Justice Sotomayor authored the 7-2 majority opinion affirming the Second Circuit’s holding that the first fair use factor, “the purpose and character of the use”, weighed against fair use. The Court found both Warhol’s Orange Prince and Goldsmith’s original photograph shared the same “purpose” because both are “portraits of Prince used to depict Prince in magazine stories about Prince.” Even if Warhol’s Orange Prince added new expression, meaning, or message to Goldsmith’s photograph, the same “purpose and character of the use” weighs against fair use. Further, the copying was commercial in nature.

On its face, this decision appears to open a floodgate for more copyright infringement lawsuits by and against artists and content creators with the key question being whether the transformation brought a new and different purpose. For all, there will certainly be more caution before using other works as “inspiration.”

The majority decision focuses on the purpose and character of Warhol Foundation’s use of Orange Prince, noting that Goldsmith owned the rights to derivative works that transform the original. Here, Goldsmith’s original photograph of Prince and Andy Warhol’s copying of that photograph in an image licensed to a special edition magazine devoted to Prince both shared substantially the same commercial purpose.

Justice Kagan’s dissenting opinion, joined by Chief Justice Roberts, argues this “doctrinal shift” away from transformative use “cuts against copyright’s core purpose” to “foster creativity” and “promote the Progress of Science and useful Arts”; improperly eliminates “‘breathing space’ for artists to use existing materials to make fundamentally new works for the public’s enjoyment and benefit”; will “stifle creativity of every sort”; and “make our world poorer”.

The dissent states that the majority “leaves our first-factor inquiry in shambles” by improperly restricting fair use’s boundaries in a manner contrary to established precedent. The first factor, “the purpose and character” of the copier’s use, per Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) and Google LLC v. Oracle America, Inc., 593 U.S. _ (2021), provides that if a new work “adds something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message” to a significant degree, then the work is “transformative” and the first factor favors the copier.

Justice Kagan argues the majority improperly holds that a new work can never be sufficiently “transformative” under the first factor if the copier entered into a licensing transaction similar to one the original author might have done, no matter how much “new expression, meaning, or message” the copier added. The dissent also argues that the majority opinion improperly transplants the fourth fair use factor (effect of the use on the potential market for or value of the copied work) into the first factor (purpose and character of the use), and focuses only on the “purpose” of the use while failing to consider the use’s “character.”

Justice Sotomayor’s majority opinion contains extensive criticisms of and rebuttals to Justice Kagan’s dissent, including in numerous lengthy footnotes, arguing that that Kagan’s dissent contains flawed logic, “interpretative error[s]” and “mistakes”, “a series of misstatements and exaggerations”, that it “misses the forest for a tree”, and “either does not follow, or chooses to ignore” the majority’s analysis.

The majority states that the dissent’s overbroad concept of transformative use “would narrow the copyright owner’s exclusive right to create derivative works.” The majority further writes that the dissent contains “no limiting principle for its apparent position that any use that is creative prevails under the first fair use factor”, that such a “single-minded focus on the value of copying ignores the value of original works,” and that that the dissent’s “claims will not age well.”

Justice Kagan’s dissent noted that “the majority opinion is trained on this dissent in a way majority opinions seldom are” through “pages of commentary and fistfuls of come-back footnotes.” The dissent encourages readers to “go look at” the Court’s cited prior opinions, and consider how much of the majority’s statements are supported by sound reasoning as opposed to unsupported statements.

Justice Gorsuch’s concurring opinion, joined by Justice Jackson, emphasizes that the copyright statute does not ask judges to speculate about an artist’s purpose or assess the aesthetic character of resulting works. Instead, judges should consider “the purpose and character of the use”, which is “a comparatively modest inquiry focused on how and for what reason a person is using a copyrighted work.” Justice Gorsuch notes that the Court’s majority opinion does not decide if the Warhol Foundation’s licensing of Orange Prince to a magazine actually infringes Goldsmith’s copyright, or if Warhol’s Orange Prince might qualify as fair use in other contexts (e.g. if displayed in a non-profit museum, or in a book commenting on 20th century art).