The Supreme Court’s Decision in Warhol: A Narrow Interpretation of Fair Use With a Potentially Limited Impact

May 26, 2023

In a much-anticipated decision concerning the copyright fair use defense as to Andy Warhol’s silk screen image of Prince based on a photograph by prominent photographer Lynn Goldsmith, the United States Supreme Court adopted a narrow conception of fair use in two respects.

It framed the relevant use as the commercial licensing of an image of Prince for a publication about Prince – a use that in this instance applied to both Warhol’s work and Goldsmith’s photograph.  And while recognizing that Warhol’s work may have added “new expression, meaning, or message,” the Court concluded that, in respect of the specific use in question, this would not establish fair use without a showing that it also had some “critical bearing” on the underlying source material – as does, for example, a parody of an underlying work.  The Court held that the combination of these two considerations points against fair use, while emphasizing that its decision did not extend to other uses – such as display in a museum or in an article about Warhol’s artistry.

Though the Court’s resolution of the case was highly fact-specific and therefore arguably limited in impact, it raises concerns for the field of “appropriation art” – the practice of creating works based on underlying source material; and it makes fair use assessments more complex by requiring a new and detailed analysis for each particular “use” of a work.  In a spirited dissent, Justice Kagan, joined by Chief Justice Roberts, criticized the majority for denying fair use based merely on a marketing decision, the commercial licensing of Warhol’s work, and giving too little weight to the Warhol work’s transformative meaning, message and expression, and warned that the majority’s approach hampers creative progress and undermines creative freedom.

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