On May 18, 2023, the Supreme Court decided in favor of photographer Lynn Goldsmith whose 1981 licensed Newsweek photo of rock star Prince was used in 1984 as the basis for Andy Warhol’s Prince series of silkscreen prints.  In 2016, the Andy Warhol Foundation licensed one of the prints to Condé Nast for a magazine cover celebrating Prince after his death.  Goldsmith saw the magazine and recognized her photo as the basis of Warhol’s artwork, leading to copyright infringement litigation.

 

At the district court, the AWF defended Warhol’s use of Goldsmith’s photo in producing the silkscreen prints in part on the basis of fair use.  The four fair use factors, under 17 U. S. C. §107, include:  (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.  The district court granted summary judgment to AWF under its fair use defense.  However, the Appeals Court reversed in its analysis of fair use, stating that all four factors are in favor of Goldsmith.

 

SCOTUS took up the case based on “the sole question … [of] 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,’ … weigh[ed] in favor of AWF’s recent commercial licensing to Condé Nast.”  The Supreme Court weighed much of the analysis on the decision of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994) and its analysis of “whether the use ‘merely supersedes the objects of the original creation . . . (supplanting the original), or instead adds something new, with a further purpose or different character.’”  In particular, the Supreme Court weighed on Campbell’s teaching that when “commentary has no critical bearing on the substance or style of the original composition, . . . the claim to fairness in borrowing from another’s work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger.” Campbell at 580.  Under this basis, the Supreme Court determined that Warhol’s adjustment of Goldsmith’s original photo did not comport with the guidelines of fair use.

 

Justice Kagan, dissenting, stated the following:

 

It’s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepia-tinting).  “What is all the fuss about?,” the majority wants to know.  Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism.

 

However, beyond special filters, we have recently entered the era of generative artificial intelligence (AI), including AI art generators designed to generate new works “in the style” of famous artists.  Thus, at the time of release of this decision, Justice Kagan’s dissent appears somewhat naïve in stating “Warhol is not an Instagram filter” since, in effect, it can easily be an AI generative art filter today.  As such, to effectively protect original works produced by human artists from near instantaneous “artistic” AI alteration, the Goldsmith decision, in the opinion of this author, provides an important level of protection.