Prince, Warhol, and the Future of Fair Use 

In 2023, the Supreme Court held in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, that Andy Warhol’s 1984 classic use of appropriation had gone too far: he had infringed the copyright of Lynn Goldsmith’s photograph of the rock star Prince.¹[1]Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). This case’s holding—watched closely by artists, marketers, and others whose livelihood depend in part or in full on appropriative art—almost immediately provoked concern that appropriative art would incur reinvigorated infringement liability.²[2]See Peter J. Karol, After Warhol, ARTFORUM (June 5, 2023). This article summarizes the main points of discussion in the case, explains its central holding, and offers a few additional perspectives on the core legal question—when is the character or purpose of an artwork changed enough to avoid legal liability for infringement?³[3]See Warhol, supra note 1. Additionally, this article concludes with a brief consideration of whether the Warhol decision will impede the production of new creative works, a primary concern for the Warhol dissent,⁴[4]See Id. at 560. or impact the burgeoning market for AI-generated art. 

Fair Use and Its Purpose 

New creative works often build on past creativity,⁵[5]Jonathan Lethem, The Ecstasy of Influence, Harper’s Magazine 61 (Feb. 2007). including through appropriation, allusion, or downright copying.⁶[6]Id. Ordinarily, unlicensed copying of past works amounts to copyright infringement.  However, Section 107 of the Copyright Act creates an exception for “fair use” of  copyrighted works in delineated situations, such as for commentary, criticism, news reporting, teaching, scholarship, and research.⁷[7]Id. Congress created this exception at least in part to encourage the production of new works and to foster creativity more generally.⁸[8]See The purpose and role of fair use, Patry on Fair Use § 1:2.

The Copyright Act sets forth four factors to determine when a use is fair and non-infringing: 

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.⁹[9]17 U.S.C. § 107.

The Supreme Court has held that each factor is to be weighed equally and construed in light of the general purposes of copyright protection (namely, promotion of artistic creation). ¹⁰[10]See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-578 (1994). Ultimately, fair use “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” ¹¹[11]Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1399 (9th Cir. 1997) (quoting Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir. 1980)). At issue in the Warhol case was the first factor—the purpose and character of the use of the copyrighted work. ¹²[12]Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 516 (2023).

Approaching Warhol v. Goldsmith 

In Warhol, the Court was tasked with determining whether one in a series of Andy Warhol’s works based on Lynn Goldsmith’s 1981 photograph of Prince was a fair use of that photograph.¹³[13]See Id. In 1984, Vanity Fair paid Goldsmith $400 to permit Andy Warhol to use her Prince photograph as a reference for an illustration to be published once in the magazine, with Goldsmith credited.¹⁴[14]See Id. at 515. Under this license, Warhol produced a purple version of the photograph as part of his “Prince Series” of works.¹⁵[15]See Id. at 522. Like the other works in the series, Goldsmith’s photograph was flattened, colored, and traced to produce Warhol’s signature pop art style.¹⁶[16]See Id. at 522.

After Prince’s death in 2016, Condé Nast (the parent company of Vanity Fair) asked the Andy Warhol Foundation for permission to license an orange-colored serial in the Prince series, called “Orange Prince,” for a commemorative magazine cover.¹⁷[17]See Id. at 519-520. Goldsmith received neither a fee nor credit when Condé Nast subsequently published Warhol’s orange artwork without a license.¹⁸[18]See Id. Goldsmith argued that reuse of the image infringed her copyright, to which the Warhol Foundation responded that the artist had sufficiently “transformed” Goldsmith’s photograph to amount to an artistic fair use of the original.¹⁹[19]See generally, Brief of Respondent, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023); Brief of Petitioner, Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The litigation that ensued centered on the first fair use factor: the purpose and character of the use, and specifically whether the use was of a commercial nature. 

The New Rule 

Prior to Warhol, the Supreme Court had held that the heart of the question for the first factor—the purpose or character of the use²⁰[20]17 U.S.C. § 107.—was whether a subsequent use substantially transformed the original work by adding a new meaning or message to it or otherwise amounting to a significant aesthetic alteration.²¹[21]See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); see also Cariou v. Prince, 714 F.3d 694, 705—06 (2013) (stating the rule regarding transformation of original work into a “new meaning or message”). However, in Warhol, the Supreme Court determined that a finding of new meaning or aesthetic alteration provided relevant, but not dispositive, evidence as to the level of transformation in the use.²²[22]See Warhol, 598 U.S. at 526. Instead, Justice Sotomayor, writing for the majority in Warhol, focused on the fact that Orange Prince served a similar commercial purpose as the originally licensed use: to appear as a magazine cover and illustrate stories about Prince.²³[23] See Id. Thus, the “purpose and character” of the use was similar to Goldsmith’s work and the first factor weighed against the Andy Warhol Foundation.²⁴[24]See id.

Justice Sotomayor set up a sliding scale for the first factor. On this scale, uses that garner the most support on that factor are those with a substantially altered aesthetic character and non-commercial purpose. ²⁵[25]See Id. at 531-533. Conversely, commercial works with substantially the same aesthetic character as the original enjoy the least support. ²⁶[26]Id. In the middle between these extremes, judges will have room to determine whether, for instance, appropriative commercial works with a significantly changed aesthetic or appropriative non-commercial works with similar aesthetics will enjoy the support of the first factor. ²⁷[27]Id.

Dissent and Other Reactions 

Justice Sotomayor’s approach affords greater protection to copyright holders by reducing the breadth of fair use protection available to others seeking to appropriate copyright holders’ art.²⁸[28]See Id. at 550.Justice Kagan’s dissent questions the majority’s argument and warns that its logic will lead to a diminution in creative freedom for the world.²⁹[29]See Warhol, 598 U.S. at 593 (Kagan, J. dissenting). Kagan’s belief stems from her view that as a result of the Warhol decision, future artists seeking to appropriate may be financially barred from the practice due to licensing constraints and worries about infringement liability.³⁰[30]See Id. at 593 (Kagan J. dissenting).

In the art world, there appeared strong support for the Andy Warhol Foundation from modern art compatriots³¹[31]See, e.g., Brief for the Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, and Brooklyn Museum as Amici Curiae Supporting Petitioner, Andy Warhol Found. for the Visual Arts, Inc., v. Goldsmith, 598 U.S. 508 (2023); Brief for Amici Curiae Barbara Kruger and Robert Storr in Support of Petitioner, Andy Warhol Found. for the Visual Arts, Inc., v. Goldsmith, 598 U.S. 508 (2023). and art world commentators alike.³²[32]See Amy Adler, The Supreme Court’s Warhol Decision Just Changed the Future of Art, Art in America (May 26, 2023), https://www.artnews.com/art-in-america/columns/supreme-court-andy-warhol-decision-appropriation-artists-impact-1234669718/. Commentators and amici curiae both worried, like Kagan, that any narrowing of the first-factor analysis would unnecessarily restrict artists interested in using appropriation in their works.³³[33]Id., see also Brief for Amici Curiae Barbara Kruger and Robert Storr in Support of Petitioner at 3, Andy Warhol Found. for the Visual Arts,, Inc., v. Goldsmith, 598 U.S. 508 (2023). Others have cautioned that even if the narrow ruling of Warhol does not have Justice Kagan’s claimed far-reaching effects, it may still foment a culture of cautious over-licensing that may stifle smaller creators.³⁴[34]Blake Gopnik, Ruling Against Warhol Shouldn’t Hurt Artists. But It Might, THE N.Y TIMES (May 19, 2023), https://www.nytimes.com/2023/05/19/arts/design/warhol-prince-supreme-court-copyright.html.

Application in Subsequent Cases 

While the worst-case scenario described in Justice Kagan’s dissent³⁵[35]See Warhol, 598 U.S. at 593 (2023) (Kagan, J. dissenting). certainly has not come to pass thus far, the breadth of the decision’s impact is yet to be fully tested. While there have been several cases interpreting the first fair use factor in the wake of Warhol,³⁶[36]See, e.g., Philpot v. Indep. J. Rev., 92 F.4th 252 (4th Cir. 2024); Sedlik v. Drachenberg, 2023 WL 6787447 (C.D. Cal. Oct. 10, 2023); Cramer v. Netflix, Inc., 2023 WL 6130030 (W.D. Pa. Sept. 18, 2023). no consensus has emerged as to its ultimate effects on creative freedom at-large.  

One such case in the Fourth Circuit, Philpot v. Independent Journal Review, used the Warhol analysis to find that a photograph of Ted Nugent used on a for-profit website listicle was both non-transformative and commercial, rendering it ineligible for fair use protection.³⁷[37] See Philpot v. Indep. J. Rev., 92 F.4th 252, 260 (4th Cir. 2024). In comparison to the use in Warhol, the use of the photograph in Philpot was significantly less transformative and clearly commercial, rendering it a poor test-case for Warhol’s applicability in borderline cases.³⁸[38]See Id.

Comparatively, in a case in the Central District of California, Sedlik v. Drachenberg, at issue was celebrity tattooist Kat Von D’s tattoo use of Jeffrey Sedlik’s photographic portrait of Miles Davis.³⁹[39]Sedlik v. Drachenberg, 2023 WL 6787447 (C.D. Cal. Oct. 10, 2023). There, the district court determined that prior to Warhol, Drachenberg’s evidence created a triable question regarding aesthetic transformative use, but after Warhol, it did not.⁴⁰[40] See Id. at *4. This is because prior to Warhol, the defendant was able to maintain that her use created a different meaning and message than the original copyright-protected work (a question for a jury).⁴¹[41] See Id. at *4. After Warhol, though, she failed to provide any evidence meeting the new, heightened standard for transformed aesthetic character (leading to a granting of summary judgment for plaintiff on the issue of aesthetic character for the first factor).⁴²[42]See Id. Further, the district court found that though Kat Von D tattooed the image for a friend for free, she may have profited from the use by posting an image of the tattoo to social media, making it commercial in nature.⁴³[43]See Id. at *5.

Ultimately, the jury determined that Von D’s use was both transformative and non-commercial in nature, leading to Von D avoiding liability.⁴⁴[44]Sedlik v. Drachenberg, 2024 WL 4327404, at *4-6 (C.D. Cal. May 3, 2024). The case demonstrates that future litigation surrounding fair use may come down to how juries determine the balance between aesthetic transformation and commercial or non-commercial use along Justice Sotomayor’s scale.⁴⁵[45]See Warhol, 598 U.S. at 531-33. In borderline cases (e.g., in which the use is clearly transformative in aesthetic nature but similar to the original in its commercial purpose or vice versa), appropriation artists will be hard pressed to assert with any certainty whether a license is required or not. 

Warhol’s Far-Reaching Implications  

Ultimately, Warhol will necessitate more copyright licensing given the newly weakened fair use protection. ⁴⁶[46]See Karol, supra note 2. Thus, copyright holders in popular works (across all types of media) will enjoy some invigoration of their licensing markets. ⁴⁷[47]See Id. In Justice Sotomayor’s view, a reinvigorated licensing market will “provide an economic incentive to create original works, which is the goal of copyright.” ⁴⁸[48]Warhol, 598 U.S. at 535. However, as several in the art world have pointed out, the immediate effect on early-career and starving artists will be to discourage art incorporating others’ works. ⁴⁹[49]See Adler, supra note 32; see also Karol, supra note 2. Further, as at least one commentator suggested, the heightened requirement for changed aesthetic character may “force artists into aesthetic choices they did not want to make” in order to avoid liability. ⁵⁰[50] See Karol, supra note 2.

An enervated fair use doctrine may have additional negative implications for AI artists whose artistic tool relies on appropriation of others’ work.⁵¹[51]See Id. (“the respective purposes of the original photographer and later [AI] artist might look highly similar (creating aesthetically pleasing, licensable works of visual art)”). However, the Warhol opinion may actually provide a new tool to shield AI program developers since they may now more readily claim the purpose in their appropriation (namely, training a computer system) is distinct from that of original artists.⁵²[52]See Id. (“The purpose to which AI platforms are putting those images—what a lawyer might characterize as teaching the program how to make art—is facially different from the purpose of, say, a photographer who sold an original photograph to Getty Images for licensing to others”). Thus, as AI art gains cultural currency, the fair use doctrine will be integral in determining the balance of rights between original artists and the AI artists and programmers incorporating their work.⁵³[53]See Id.;

Conclusion 

Any time the Supreme Court alters its copyright analysis it is likely to lead to shifts in the balance of power between copyright holders and appropriation artists, but we will not know the extent of the impact of Justice Sotomayor’s approach in Warhol until the justice system shakes out myriad “close calls.” Until then, the mere fact of legal uncertainty is likely to breed caution among appropriators, possibly limiting artistic output overall—or alternatively—slightly increasing licensing income for the original artists as appropriators seek to avoid liability.⁵⁴[54]For a similar refrain, see, e.g, Sarah Cascone, In a Landmark Ruling Against the Andy Warhol Foundation, the Supreme Court Has Sided With Photographer Lynn Goldsmith, ARTNET (May 18, 2023), see also Adler, supra note 32. Ultimately, appropriation artists and others looking to use prior works will ask themselves: if Andy Warhol, the patron saint of appropriation, can run afoul of our nation’s copyright laws, is it ever really worth forgoing a license? ⁵⁵[55]See e.g. Karol, supra note 2. To smaller artists and the risk-averse, the answer will likely be a resounding no. 

Max Baron is a 2026 J.D. Candidate at Brooklyn Law School