CALL US: 206.533.3854
CALL US  206.533.3854
AEON Law logo full color transparent
Adny Worhol and Goldsmith work of Prince- multicolor print
"Che Guevara 1962 Andy Warhol Poster" by  Podknox  is licensed under CC BY 2.0.

Supreme Court Rules on “Fair Use” in Warhol Copyright Case

US Supreme Court:
Commercialism factor
Rules in copyright

The US Supreme Court has issued its decision in the important copyright law case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al.

We previously discussed this case here.

In 1981, Lynn Goldsmith, a professional photographer, was commissioned by Newsweek to photograph a then “up and coming” musician named Prince Rogers Nelson (commonly known as “Prince”).

Years later, Goldsmith granted a limited license to Vanity Fair to use one of her Prince photos as an “artist reference for an illustration,” for “one time” only.

Artist Andy 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 original photograph and paid her $400.

Warhol, without a license from Goldsmith, made a series of other silkscreen portraits of Prince based on Goldsmith’s photo, with various color schemes. In 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed to Condé Nast for $10,000 an image of “Orange Prince” for the cover of a magazine commemorating Prince after his untimely death.

Goldsmith didn’t know about Warhol’s “Prince Series” until 2016, when she saw the magazine cover. She notified AWF that she believed the works infringed her copyright. AWF then sued Goldsmith for a declaratory judgment of noninfringement or, in the alternative, fair use.

A district court found for the AWF, but the Court of Appeals reversed.

The four factors that courts apply in determining whether unlicensed use of a copyrighted work is “fair use” – and thus not a copyright violation – are:

  • the purpose and character of the use,
  • the nature of the copyrighted work,
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

The issue before the Supreme Court was:

whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” … weighs in favor of AWF’s recent commercial licensing to Condé Nast.

When determining whether a new work based on a prior copyrighted work is infringing, courts consider whether the new work is merely derivative (and thus infringing) or whether it’s “transformative,” and thus allowed under the doctrine of fair use.

For example, parody has been held to be transformative and thus fair use.

As the Court noted,

AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.

The Court noted that

The commercial nature of a use is relevant, but not dispositive. It is to be weighed against the degree to which the use has a further purpose or different character.

The Court concluded:

the purpose of the Orange Prince image is substantially the same as that of Goldsmith’s original photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince. The use also is of a commercial nature. Taken together, these two elements counsel against fair use here.

Justice Kagan filed a dissenting opinion, calling Warhol “the avatar of transformative copying.” She concluded that the majority’s opinion

will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.

The majority’s opinion is likely to be highly influential in cases about whether generative AI – such as Midjourney and ChatGPT – can legally copy and adapt unlicensed intellectual property owned by others, as we discussed here.

Just like the haiku above, we like to keep our posts short and sweet. Hopefully, you found this bite-sized information helpful. If you would like more information, please do not hesitate to contact us here.

Related Articles

AEON Law Founder Adam Philipp Ranked Among Leading IP Lawyers in Chambers USA Guide

AEON Law founder Adam Philipp is included in this year’s Chambers USA guide of the leading IP attorneys in AEON’s home market of Washington. Based ...
Read More

AEON Law and Founder Adam Philipp Ranked Among World’s Top Patent Professionals in IAM Guide

AEON Law and founder Adam Philipp are recognized in this year’s IAM Patent 1000: The World’s Leading Patent Professionals. Adam was recommended for patent prosecution ...
Read More

Understanding the Dawn Donut Rule for Trademarks

In trademark law, the general rule is that, where two parties seek to use the same trademark in the same geographic area, the earlier (“senior”) ...
Read More

Let's work together.

Contact us to set up a meeting with an attorney or team member.

Stay Informed

Sign up to receive Patent Poetry—a monthly roundup of key IP issues in our signature haiku format. Four articles (only 68 syllables); zero hassle.



Artificial Intelligence

Blockchain & Cryptocurrency

Computer Technology & Software

Consumer Electronics

Electrical Devices



Mechanical Devices

Consumer & Retail Products

Hardware & Tools

Toys & Games



Chemical Compounds

Digital Health

Healthcare Products



Books & Publications

Brand Creation

Luxury Products

Photography & Video

Product Design

call us  206.533.3854