Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), No. 21-869, decided May 18, 2023. Opinion of the Court by Sotomayor, J.; concurrence by Gorsuch, J., joined by Jackson, J.; dissent by Kagan, J., joined by Roberts, C.J. Slip opinion, Supreme Court of the United States (public domain).
Key takeaways
From the reading, NOTE-1019.
- One factor, one use. The only question was whether the first factor of 17 U.S.C. §107, “the purpose and character of the use”, favours AWF’s 2016 licence of Orange Prince to Condé Nast for $10,000. It does not (maj. pp. 2, 12–13, 38). The Court expresses no opinion on the making, display or sale of the Prince Series (p. 21).
- Transformation is of purpose, and by degree. The first factor asks “whether and to what extent” a use has a further purpose or different character (p. 16). New expression, meaning or message is relevant to that, but “not, without more, dispositive” (p. 12). Meaning counts “as reasonably can be perceived”, not as artist or critic intends or reads it (pp. 31–32).
- The derivative right sets a floor. Because the owner holds the right to works that recast, transform or adapt hers (§§101, 106(2)), “transformative” use must transform more than a derivative does (p. 16). Adaptations, sequels and remixes add new expression and still need licences (pp. 28–29, 35).
- Justification, and targeting. Copying is best justified when it is needed for the new purpose, as when parody must conjure up its target; satire, which does not target the work, must justify the borrowing (pp. 17–19, 34–35). Warhol’s Soup Cans target Campbell’s logo; Orange Prince does not target the photograph (pp. 26–27, n. 20).
- The licensing market is the owner’s. The typical use of a celebrity photograph is to accompany stories about the celebrity, and photographers license stylized derivatives too; such licences are how they make a living (p. 22). The first factor’s substitution question is tied to, but distinct from, the fourth factor’s market harm (n. 12).
- The dissent (Kagan) holds that Warhol transformed the photograph in aesthetics and meaning, that the majority moves market harm into factor 1 and that targeting has no basis in precedent, and that art, literature and music proceed by such copying (Kagan pp. 1–36).
Standing in the record
Filed on 2026-10-20 at the owner’s request, beside Lessig’s Remix (LIT-1298). It is the record’s first court opinion on copyright. The record files it for the translation line: the opinion is an institution’s explicit ruling on how a reworking stands to its source, in terms of derivative versus transformative, purpose versus meaning, and target versus material. What transfers to CLAIM-002, CLAIM-034, CLAIM-210 and QUESTION-002, and what does not, is set out in the reading.