The case
From the slip opinion of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) (LIT-1302, read in NOTE-1019). Page numbers restart for each opinion.
- The source and the rendering. Lynn Goldsmith photographed Prince in 1981. In 1984 her agency licensed one portrait to Vanity Fair as an “artist reference for an illustration”, for one use (maj. p. 3). Warhol made the Vanity Fair image and fifteen more works from it. The Court describes Orange Prince as one that “crops, flattens, traces, and colors the photo but otherwise does not alter it” (maj. p. 8).
- The use at issue. In 2016 Condé Nast paid AWF 1,000 to use another of her photographs for its own tribute issue, and Rolling Stone and Time ran tribute covers with other photographs (maj. pp. 6–7). The Court decided nothing about the making, display or sale of the Prince Series (maj. p. 21).
- The majority. New expression, meaning or message does not by itself favour the user, or “transformative use” would swallow the owner’s right to derivative works (maj. p. 28). Meaning “should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original” (maj. pp. 31–32). Here the purpose, a portrait of Prince illustrating a magazine about Prince, was substantially the same, and the use was commercial (maj. pp. 24–25, 33). Bringing out with a characteristic style a meaning “that was available in the photograph” is less likely to be a further purpose (maj. p. 33). Copying is most clearly justified when the original is the target, as in parody (maj. pp. 17–19).
- The dissent. The experts agreed the works differ in “composition, presentation, color palette, and media” and in meaning: Goldsmith’s subject was Prince’s identity, Warhol’s “not the private person but the public image” (Kagan p. 9). Factor 1 asks what the copier accomplished (Kagan p. 13). The majority reads “character” out of the statute and counts the owner’s market twice (Kagan pp. 19–22).
What it can show
Two measures of what a rendering changed, on one pair. The majority measures the rendering by the purpose it serves in a use: what job the cover does for a reader of a tribute issue. The dissent measures it by the meaning a viewer can read in it. On the same image the two measures disagree. That makes the case a documented instance of QUESTION-002’s problem: what survives a rendering depends on which relation is measured, and here an institution had to choose one. It does not show which is right. The Court is answering a statutory question, not a semantic one.
CLAIM-034. The opinion ranks rendering goals by the source’s role. Parody and criticism, which need the original as their target, are favoured. Adaptation, sequels and translation fall within the owner’s derivative right (maj. pp. 16, 28–29). Similarity of purpose counts against the user. That is a legal scale on which fidelity of purpose is a cost, not a goal, the reverse of a translator’s.
CLAIM-210. The other tribute covers served “the same essential purpose” as Orange Prince with a variety of portrait photographs (maj. n. 11). None was made from the photograph Warhol used, and no one suggested that sharing its purpose was a wrong. People’s cover was another Goldsmith photograph, used under licence. Sharing a purpose mattered only for the cover that copied the photograph, so the law separates sharing a kind from being a rendering, as CLAIM-210 does.
What it cannot show. It is a commercial licence between professionals, not amateur remix, so it bears on Lessig’s argument (NOTE-1023) only through the law’s general test. Its “purpose” is the purpose of a market use, not a communicative function in CLAIM-220’s sense, and reading one as the other would be an analogy only. The images did not survive text extraction, so the record has the opinions’ descriptions of them, not the images.