Andy Warhol looms large—not just within the ivory tower of contemporary visual arts, but in American culture. To many, his colorful silkscreen portraits of such celebrities as Marilyn Monroe or Elizabeth Taylor are paradigmatic of contemporary art. Yet, despite the near-universal reach of his work and his significant celebrity in his own right, the theoretical and conceptual underpinnings of his work remain less accessible to casual viewers.
In 1984, Lynn Goldsmith, a celebrity portrait photographer, licensed a 1981 photograph she took of the musical artist Prince (the “Goldsmith Photograph”) to Vanity Fair Magazine for use as an artist reference in an illustration that appeared twice in the magazine, with attribution back to Goldsmith for the “source photograph.”1Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1266 (2023). Vanity Fair hired Andy Warhol to create a silkscreen portrait of Prince based on the Goldsmith Photograph to accompany an article about Prince’s music and newfound celebrity. Unbeknownst to Goldsmith until she discovered “Orange Prince,” an orange silkscreen portrait of the singer, on the cover of Condé Nast’s posthumous tribute to Prince in 2016, Warhol created fifteen additional works based on her photograph (the “Prince Series”) before his death. Goldsmith sued for copyright infringement, and the district court for the Southern District of New York (the “Warhol district court”) initially found the Prince Series was transformative and granted summary judgment to the Andy Warhol Foundation for the Visual Arts (“AWF”) on its fair use defense. The Second Circuit reversed upon concluding that each of the four statutory fair use factors2 See infra Part I . weighed in favor of Goldsmith. The Supreme Court granted certiorari to examine the first fair use factor, ultimately finding in a 7-2 decision that the first factor favored Goldsmith and counseled against fair use because the purpose of Orange Prince was substantially the same as the Goldsmith Photograph and AWF’s licensing of Orange Prince to Condé Nast’s special issue commemorating Prince was of a commercial nature.3Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. at 1278, 1280. Justice Kagan, joined by Chief Justice Roberts, penned a sharply-worded dissent in defense of Warhol’s transformative use of his source material, accusing the majority of leaving the Court’s first factor inquiry “in shambles”4Id. at 1292 (Kagan, J., dissenting). and “our world poorer.”5Id. at 1312 (Kagan, J., dissenting).
Warhol’s fame complicates the fair use analysis in the case at hand (“Warhol”) because it raises questions of “celebrity-plagiarist privilege”6Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 31, 43 (2d Cir. 2021) (“[T]he more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others.”). and how the Supreme Court’s ruling may influence less established artists in future copyright suits. The Warhol district court and the Second Circuit, amici for both parties, and Supreme Court Justices have all debated the proper role, or the absence thereof, that Warhol’s fame might play in the Court’s analysis of whether Orange Prince could be protected as fair use of the Goldsmith Photograph. Despite the fact that this case is far from the first time Warhol’s appropriation of photographs for his silkscreen work has embroiled him in copyright disputes with the photographers of the underlying works (most disputes were settled out of court),7Kate Donohue, Andy the Appropriator: The Copyright Battles You Won’t Hear About at the Whitney’s Warhol Exhibit, Colum. J.L. & Arts (Aug. 2, 2019), https://journals.library.columbia.edu/
index.php/lawandarts/announcement/view/112 [https://perma.cc/73LG-4FNT]. this case promised to be of unprecedented significance because of the myriad of ways in which Warhol epitomizes the challenges that appropriation art,8Appropriation art refers to the practice of using preexisting images or objects to create new artwork with minimal physical transformations to the originals; often to challenge traditional notions of authenticity, creativity, and authorship. Appropriation, Tate, https://www.tate.org.uk/art/art-terms/a/appropriation [https://perma.cc/B8UL-VH45]. and the contemporary visual arts more broadly, have historically posed for the fair use doctrine.
The task of formulating a clear standard for evaluating fair use in cases involving appropriation art has only become more challenging in our digital age, in which the use of appropriation in art is no longer limited to the “relatively small segment of creators who practice ‘appropriation art.’ ”9Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. Rev. 559, 571 (2016). The practice of copying has become “both the topic of contemporary art and its technique” and “now permeates art in an extraordinarily diverse range of ways.”10Id. at 571–72. Accordingly, Warhol represented a crucial opportunity for the Supreme Court to tailor a more specialized and better-informed standard of fair use in the context of the conceptual visual arts so that the fair use doctrine may continue to evolve alongside advancements in the arts.
This Note proposes that the Supreme Court should have vacated and remanded Warhol to the district court to supplement its evaluation of the first and fourth fair use factors with an evidentiary analysis of the perspective of an art market consumer or magazine editor. Part I of this Note offers an overview of the legislative intent of the fair use defense and the four statutory factors, then traces subsequent articulations of the doctrine in U.S. fair use jurisprudence. Part II discusses the issues of scope and incompatibility that arise from the fraught application of the Second Circuit’s analysis of “transformativeness” under the first factor to conceptual art. Part III explores how adapting the substantial similarity analysis to fair use by allowing courts to consider the perspective of the art market consumer under the first and fourth factors can contribute to a more equitable and informed application of the fair use doctrine.
