What Now for Fair Use After Warhol v. Goldsmith

The U.S. Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Andy Warhol’s portrait of music legend Prince did not qualify as fair use under copyright law. Scott Hervey and Tara Sattler talk about this decision on this episode of The Briefing by the IP Law Blog. Watch this episode on the Weintraub YouTube channel here. Cases Discussed: * Andy Warhol Foundation v. Goldsmith * Campbell v. Acuff-Rose Music Show Notes: Scott: In a closely watched copyright case, the U.S. Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Andy Warhol's portrait of music legend Prince did not qualify as fair use under copyright law. The decision affirms a previous ruling by the Second Circuit, which found that Warhol's artwork shared the same commercial purpose as the original photograph taken by photographer Lynn Goldsmith. The Supreme Court seemed to make a great effort to state that its analysis was limited to the specific use alleged to be infringing - the foundation’s licensing of Warhol Prince portrait to Conde Nast - and stated that the court is not expressing an opinion as to the creation, display or sale of the original series of Warhol Prince portraits, and the case itself presents the unique situation of the two works actually competing in the same marketplace. However, this opinion is now the go-to for determining fair use, and it will have a very wide impact. We are going to talk about the impact of this case in this installment of the briefing by Weintraub Tobin. Scott: These are the underlying facts. In 1981 Lynn Goldsmith was commissioned by Newsweek to photograph a then "up and coming" musician named Prince Rogers Nelson. Newsweek later published one of Goldsmith's photos along with an article about Prince. Years later, Goldsmith granted a limited license to Conde Nast publication - Vanity Fair, for use of one of her Prince photos as an "artist reference for an illustration." The terms of the license included that the use would be for “one time” only. Vanity Fair then hired Andy Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400. Tara: After Prince died in 2016, Condé Nast contacted the foundation about reusing the 1984 Vanity Fair image for a special edition magazine that would commemorate Prince.  Condé Nast learned about a series of orange silkscreen portraits of Prince created by Warhol. This Orange Prince image is one of 16 works that Warhol derived from Goldsmith's photograph. When Condé Nast learned about the Orange Prince Series images, it opted instead to purchase a license from the foundation to publish it instead. Apparently, Goldsmith was unaware of the orange prince Series until 2016, when she saw it on the cover of Condé Nast’s magazine. And from there, this lawsuit commenced. Scott: The sole issue on appeal to the Supreme Court was whether the first fair use factor, the purpose, and the character of the use weighed in favor of the foundation. Prior to this case, the focus has been on the transformative nature of the work itself. The Supreme Court in Campbell v. Acuff-Rose Music established this transformative use analysis when it said that the first fair use factor is an inquiry into whether   "the new work merely "supersedes the objects" of the original creation, or instead adds something new,