What the Supreme Court’s Decision in Warhol Means for Fair Use

The Supreme Court has issued its long-awaited decision in Andy Warhol Foundation v. Goldsmith, a fair use case that raised fundamental questions about rights and obligations of commercial artists. The Court’s opinion did not answer many of those questions, but happily it affirmed both important fair use precedents and the role of fair use as a crucial element of the copyright system.  EFF filed an amicus brief in the case

These are the basic facts: In 1981, Newsweek commissioned Lynn Goldsmith to take a series of photos of Prince. In 1984, she licensed one of those photos to Conde Nast for artist Andy Warhol to use as a “reference photo” to create his own portrait of the musician. Warhol created a series in various colors and the magazine chose one of these portraits to illustrate a piece on Prince. In 2016, the Andy Warhol Foundation gave Conde Nast a license to use a different portrait in the series (“Orange Prince”) for use in a special tribute magazine dedicated to Prince. Goldsmith demanded compensation. AWF sought a declaration that Warhol’s portraits made fair use of Goldsmith’s photo and, therefore, it had every right to license the resulting work. A district court said yes, the Second Circuit disagreed, and AWF appealed. Along the way most of the claims and questions were dropped, leaving the Supreme Court with one narrow but important question: whether the first fair use factor—the “purpose and character” of the use—weighed in AWF’s favor or Goldsmith’s.

As a reminder, fair use is the idea that there are certain ways that you can use a piece of copyrighted work regardless of whether you have the rightsholder’s permission, and it’s determined by a balancing test that considers four factors—

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.