Supreme Court Considering Fair Use Doctrine In Prince Picture Case

This week, the Supreme Court of the United States heard oral arguments in a case that could have a major impact on the sports and entertainment world. The case, The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith, explores the limits of the fair use doctrine, which the Supreme Court also examined in 2021 in Google LLC. V. Oracle America, Inc. The big question in Goldsmith is “[w]hether a work of art is “transformative” when it conveys a different meaning or message from its source material.”

Case Background

In the 1980s, photographer Lynn Goldsmith licensed a photograph of Prince to Vanity Fair Magazine. Vanity Fair magazine commissioned Andy Warhol to design a cover for Vanity Magazine using the photograph. Warhol utilized the photograph to create fifteen additional works.

After Prince’s death in 2016, Goldsmith notified The Andy Warhol Foundation for the Visual Arts, Inc. of the alleged violation of Goldsmith’s copyright in the original Prince photograph. In 2017, the Foundation sued Goldsmith for a declaratory judgment that Warhol’s works were non-infringing or fair use of Goldsmith’s original Prince photograph.

The District Court for the Southern District of New York ruled that Warhol’s use of the photograph was fair use. Goldsmith appealed to the United States Court of Appeals for the Second Circuit, and the Circuit Court ruled that the District Court erred and Warhol’s works are not fair use.

Fair Use Defense

First codified in the Copyright Act of 1976, 17 U.S.C. § 107 details the four factors for the fair use defense:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

• the nature of the copyrighted work;

• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

• the effect of the use upon the potential market for or value of the copyrighted work.

The Supreme Court’s analysis will focus on the first factor and whether Warhol’s works are transformative. The District Court found Warhol’s work to be transformative because the works “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” The Circuit Court disagreed. Specifically, Warhol’s works “retain[] the essential elements of the Goldsmith [p]hotograph without significantly adding to or altering those elements.”

At oral argument, the Supreme Court Justices utilized pop culture references to illustrate scenarios that may or may not constitute fair use. For example., Justice Thomas asked whether adding “Go Orange” (referencing Syracuse University) as a banner on Warhol’s Orange Prince would have sufficiently transformed the work to satisfy the first factor. Attorneys for the foundation indicated that Justice Thomas’s banner would not have sufficiently transformed the work.

Where to draw the line? That is the big question in front of the Justices. Any ruling will have a major impact on the sports and entertainment industries as companies try to determine what can constitute fair use.

Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.