Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith was a landmark case in 2022. At its core, the case begged the question: how can one borrow another’s expression without being liable for copying their work? The conclusion of two recent cases using the Supreme Court’s rationale from Warhol shows its impact on copyright law.

Before diving into the analysis of just how much the Warhol opinion affected these outcomes, it is essential to first outline the basic matters of the case and define relevant elements of copyright law.

What is copyright infringement?

To bring a claim of copyright infringement, one must register their work with the U.S. Copyright Office. They must demonstrate that the work is original, exists in a tangible medium of expression, and shows creativity, the copyright is valid.

Copyright ownership gives the owner rights to: reproduce, distribute, create derivative works, and perform or display the work publicly. Copyright infringement occurs when someone other than the copyright owner distributes, copies, publicly displays or performs or uses the copyright to create a derivative work without the owner’s permission. The law provides for exceptions in cases where it is not the intention of the law to limit creativity and the innovation of ideas. One such exception that could prevent a defendant from liability entirely is the successful application of the fair use defense.

What is the fair use defense?

An accused infringer may protect themselves from copyright infringement liability with the fair use defense. This defense is a balancing test in which the courts weigh four factors: (1) purpose and character of the defendant’s use, (2) the nature of the plaintiff’s work, (3) the amount and substantiality of the plaintiff’s work used by the defendant, and (4) the effect of the defendants use on the plaintiff’s actual or potential market.

The factor at issue in the cases discussed in this post is the factor of purpose and character. There are two possible issues to consider. This factor considers whether the defendant used the copyrighted work in a commercial way that would lead to them profiting. This tends to lean against fair use. However, even if the defendant’s use is commercial, that is not the end of the inquiry. A transformative use of another copyright or a transformative work may offset this. Let’s explain the difference between the two. A transformative use means the defendant uses the original copyrighted work in a new way. The other type of transformation is if the defendant creates a transformative work in which they substantially change the original copyrighted work. Each of these is at issue in Warhol.

Photo by Thom Masat, licensed under Unsplash

Fair Use Defense in Warhol

In 1981, Lynn Goldsmith commissioned a photograph of, now icon, Prince. Goldsmith later granted a limited license of that photograph to Vanity Fair for them to recreate in an illustrated form. However, instead of using that image in 2016, Vanity Fair used Andy Warhol’s “Orange Prince,” which was an edited version of Goldsmith’s image. When Goldsmith saw the edited version in the magazine, she realized that Andy Warhol had based it on her original photograph. She claimed that this edit infringed on her copyright, and consequently notified the Andy Warhol Foundation (AWF) for their illegal use of her copyright.

AWF sued Goldsmith for declaratory judgment.
Declaratory judgment is typically used when a party anticipates they will be sued and takes preemptive action to file a suit, asking the court to declare their rights or liabilities. AWF had two grounds for this action. First, it asserted non-infringement, and in the alternative, fair use. The trial court rejected the non-infringement basis and instead ruled on the fair use defense, finding it did not protect AWF from the copyright infringement claim. The defendant appealed, and the case was brought to the Supreme Court.

The Supreme Court held that the purpose and character of AWF’s “Orange Prince” does not favor AWF’s fair use defense to copyright infringement. AWF attempted to state that its work was transformative, and that variation of the image then produced a different meaning to Goldsmith’s. But the Supreme Court stated that this interpretation was not correct. Rather, the Supreme Court stated the factor at issue focused on whether “the infringing use has a further purpose or different character . . . and must be weighed against other considerations, like commercialism.” The Court found that because both AWF and Goldsmith’s depictions of Prince were intended to be published in works that discussed Prince and his accomplishments, the purpose was the same. In addition, the use was commercial, which generally disfavors fair use unless there is strong transformation.

Photo attribution – “Prince, Warhol, 1984” by TW, licensed under the applicable terms of Creative Commons

McNatt v. Prince and Graham v. Prince

In 2014, artist Richard Prince (with no relation to the pop icon at issue in Warhol) curated an exhibition of screen captures, showing Instagram posts along with captions and comments. The posts he featured were those by artists unaware of their inclusion in his project. Two of the original artists sued for copyright infringement. They stated that Prince violated their copyrights because his use of their images was an unlawful reproduction of their art. The museum curator raised the fair use defense, particularly emphasizing that his usage of the original photographers’ images was transformative.

Richard Prince stated that his purpose was transformative, in that it “was not to merely reproduce[ing] the image . . . rather it was to satirize and provide commentary on the manner in which people today communicate. . . .” However, the district court held in favor of the artists, ultimately dismissing the curator’s defenses with prejudice. This dismissal with prejudice disallows Price from appealing this ruling. In addition, U.S. District Judge Stein awarded expenses to artists McNatt and Graham five times the retail price.

The court evidently did not agree that Richard Prince’s purpose of using the images was transformative. After all, the exhibit was to entertain, the same as the original posters of the photographs.

Rather, what is important is whether a reasonable observer would come to the conclusion that they are distinct. Judge Stein noted that even though Richard Prince left the artists images “unobstructed, unaltered but for being cropped, and unquestionably dominant,” because Richard Prince’s use of Graham’s image is largely the image in its original form but for a caption added by Prince, it was not transformative enough to satisfy the first factor of Prince’s fair use defense.

Impact of the Warhol Decision

In the Warhol opinion, the Court emphasized that “the purpose and character of use is an objective inquiry into what use was made, i.e., what the user does with the original work.”

Consistent with the Warhol verdict, the lack of alterations of the images in the cases at hand led the court to find this first factor not in favor of fair use, despite Richard Prince claiming his interpretation of the original artists’ works had a unique purpose.

The reasoning in McNatt and Graham mirror that of the Warhol decision, and said holdings similarly redirect the focus of the factor of purpose and use to de-emphasize the importance of an artist’s own interpretation of a unique purpose when their use of the original work is only marginally altered.

Natalie Allen
Associate Blogger
Loyola University Chicago School of Law, JD 2025