The Supreme Court’s 7-2 opinion in Warhol v. Goldsmith limits the fair use defense for someone who uses copyrighted material for a commercial purpose.  The extent of this new limitation will depend on how lower courts chose to interpret the opinion, and in particular, the way in which courts interpret the “purpose and character” portion of the four-part statutory fair use test. 

Courts determine whether use of a copyrighted work is fair use with a four factor test.  The four factors¹ are:

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.

The case in question centered around a print created by Andy Warhol of the artist Prince (“Orange Prince”).

Orange Prince” and the original Goldsmith Photograph²

Warhol created “Orange Prince” by applying his iconic artistic techniques to a photograph originally taken by Lynn Goldsmith, a well-known photographer of the rock music scene for more than 30 years.  After Prince’s death in 2016 (and long after Warhol’s death), the Warhol Foundation licensed Orange Prince to Conde Nast for the cover of their tribute issue.  Because of nuances in the appeals process, the Warhol decision only involved an evaluation of Factor One: “purpose and character.” 

This is where Justice Sotomayor’s opinion arguably departs from recent precedents.  In the Supreme Court’s most recent prior fair use case, Google LLC v. Oracle Am., Inc., 141 S.Ct. 1183 (2021), it held that “The inquiry into the ‘the purpose and character’ of the use turns in large measure on whether the copying at issue was ‘transformative,’ i.e., whether it ‘adds something new, with a further purpose or different character.”³  Rather than focusing on the artistic differences between the Goldsmith photograph and Orange Prince (as Justice Kagan does in her fiery dissent), Justice Sotomayor focuses much more on the specific way Orange Prince was used: “In that context, the purpose of the image is substantially the same as that of Goldsmith’s photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince. Such ‘environment[s]’ are not “distinct and different.”⁴  The opinion emphasizes the commercial character of Warhol’s later use far above any other element in determining whether it is “transformative” when compared to Goldsmith’s original work.  This, as emphasized throughout Justice Kagan’s dissent, narrows fair use protection because an enormous amount of artistic work is at some level commercial. 

Justice Sotomayor does not posit the Court’s stance as a new test or as overturning previous precedent, but it is difficult to harmonize Warhol with fair use precedent.  Both Google and Campbell, the Court’s previous fair use cases both involved commercial use of copyrighted material.  In Google the copied material was computer code (the Java SE API) which Google used to develop its own products while in Campbell it was the Roy Orbison song “Pretty Woman” which the rap group 2 Live Crew used to create a parody song “Oh, Pretty Woman.”⁵  Both of these uses were at least as commercial, when compared to one another, as the comparative uses present in Warhol.  Perhaps cognizant of this, Justice Sotomayor attempts to narrow the scope of the court’s holding, distinguishing between Warhol’s "original creation” and the Warhol Foundation’s “commercial licensing.”  She says that in the latter context, the use supplanted Goldsmith’s work rather than “commenting” on it, and disclaims any opinion as to whether “the creation, display, or sale of any of the original Prince Series works” would be fair use in other contexts.  Notwithstanding Justice Sotomayor’s attempt to thread the needle, reevaluating either case under Warhol’s commercial focus could plausibly lead to the opposite result in either or both of the cases. Given these apparent contradictions, it will fall to District and Courts of Appeal judges to attempt to parse these apparent contradictions and determine exactly where fair use stands after Warhol.  Despite these changes, fair use remains a highly fact-specific inquiry for which results will vary significantly based on the elements of individual cases.⁶ 

Justice Sotomayor’s opinion also raised additional questions for artists.  By focusing exclusively on the use of Orange Prince as a magazine cover decades after its creation, the opinion implies that Orange Prince would have been considered fair use prior to the Warhol Foundation’s decision to license it for a magazine cover in 2016.  This puts artists and other users of copyrighted material in a difficult position.  It asks them to consider not just how they are transforming copyrighted material in the moment that they create something, but how they (or their heirs) may seek to use their work far into the future.  Given how difficult such a prediction is, a legally informed artist after Warhol may be more likely to seek a license or to refrain from using copyrighted material altogether.  This, as Justice Kagan repeatedly observes, could have a chilling effect on artistic expression generally, as artists will be forced to spend time and effort to seek licenses or may just not create new works that might previously have been considered fair use.⁷ 

1. Found in 17 USCS §107 ↩
2. Both reproduced here as a fair use, which still qualifies under the new test, as even though this is arguably a commercial use, it is clearly not a magazine cover.  ↩
3. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1188 (2020) (emphasis added) ↩
4. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 143 S.Ct. 1258, 1279 (2023) ↩
5. See Google; See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)↩
6. Some legal scholars have suggested that there is a secret fifth fair use factor: “Are you evil?” Under this interpretation, Judges are assumed to weight their analysis of the four factors based on their own view of the material and / or its creator.  See “Measuring Fair Use”, Stanford Library https://fairuse.stanford.edu/overview/fair-use/four-factors/.  It is possible to see elements of this in the Warhol decision.  Sotomayor spends much of her initial paragraphs discussing and lionizing Goldsmith’s photography and her contributions to rock culture.  Kagan, similarly, includes an extensive discussion of Andy Warhol’s cultural impact, implying that these works might never have seen the light of day under the newer rule.  ↩
7. See Warhol at 1308-1312 (Justice Kagan’s extensive discussion of famous works of art that she argues might not be fair use under the new test)↩