Lynn Goldsmith photographed the rock musician Prince during a concert at the Palladium in New York City in the year 1981. After Prince's 1984 Purple Rain album release, Condé Nast magazine Vanity Fair licenced a single black and white full-length portrait photograph (previously unpublished) for a planned feature as an artistic reference for an illustration that would only be used once. Further, "Purple Fame" was illustrated by Andy Warhol through colourized silkscreens of Prince's skull between 1984 and 1987, terming it the "Prince Series". This comprised multiple distinct works (16) including the one used in Vanity Fair magazine. The Andy Warhol Foundation for the Visual Arts (AWF) maintained all 16 of Warhol's private works after his death. The Prince Series has been displayed since at inter alia the Museum of Modern Art, Tate, and the Andy Warhol Museum.

After Prince's demise in 2016, Condé Nast produced a commemorative magazine using Prince Series variant as the cover. Despite licencing the photograph and co-crediting Vanity Fair, Goldsmith claimed she was ignorant of the illustration and Prince Series until she saw the Condé Nast cover. Goldsmith sought legal action against AWF claiming infringement of her copyright which led to AWF filing for a preliminary ruling in the Southern District of New York, claiming that it felt like a "shakedown". The Southern District Court of New York ruled in favour of AWF while the Second Circuit overturned that ruling, following which the Foundation petitioned in the Supreme Court.

AWF claimed the Second Circuit's decision subverts the entire purpose of copyright law: to promote creative progress. Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a 'purpose' and 'character' that is sufficiently distinct from the original. Goldsmith also claimed that the Second Circuit's decision was not as dire for copyright as the AWF claimed.

Justice Sonia Sotomayor of the US Supreme Court, wrote for the majority, joined by all six of the other justices deciding in favour of Goldsmith. In a narrow ruling involving the fair use defence that the AWF raised, Justice Sotomayor wrote "The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith's original photograph of Prince, and AWF's subsequent use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is also of commercial nature in both instances.

The court opined further that AWF has offered no other persuasive justification for its unauthorized use of the photograph. Justice Neil Gorsuch along Justice K.B. Jackson, concurred and added that if the AWF displayed the Prince series in a non-profit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. However, Chief Justice John Roberts and Justice Kagan delivered dissenting views wherein they said that the Court had so severely misinterpreted the relevant prior precedents as to chill transformative artistic expression with prior works and "will stifle creativity of every sort".

The Copyright Act1 in the US requires courts to consider the following four factors in deciding whether the use of a copyrighted work constitutes fair use:

  • the purpose and character of the use,
  • 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 decision dated 18 May 2023 in the present case essentially concerns the first factor - the purpose and character of the use; but more importantly it has largely polarized views and opinions among the legal fraternity. Longstanding Supreme Court precedents (Google v. Oracle2 and Campbell v. Acuff-Rose Music3) holds that the purpose and character of the use factor is informed by whether the copier's use adds something new, with a further purpose or different character, altering the copyrighted work with new expression, meaning or message. The findings and queries regarding the purpose and character ask not just whether the use at issue has a purpose or character different from the original, but also to what extent.

By focusing its decision on AWF's license to Condé Nast instead of Andy Warhol's creation of the silkscreen rendering of Prince, the Court in a way circumnavigated the complex question of whether and to what extent Warhol's artwork was transformative of Goldsmith's photograph. Also, the decision creates multiple questions and concerns that may further complicate how courts view and analyse fair use in the near future. Lastly, the SCOTUS judgment leaves unanswered a burning question i.e. during creation of an artwork, what is the flexibility or margin afforded to an artist when substantially using pre-existing works? Perhaps we will be fortunate enough to find an answer (albeit subjective) soon to this aspect of copyright law which has been raised as an issue several times but never conclusively decided.


* 598 US __ 2023

1. 17 USC. § 107

2. 141 S. Ct. 1183, 1203 (2021)

3. 510 US 569, 578 (1994)

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