On May 18, 2023, the U.S. Supreme Court issued its 43-page majority opinion in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869, 598 U.S. __ (May 18, 2023) (slip opinion linked here).

Facts. The facts of the case center around artistic creations of Andy Warhol and Lynn Goldsmith.

In the 1980s, Goldsmith, a photographer extraordinaire, captured images of many rock-n-roll stars, including Prince. In 1984, Goldsmith licensed to Vanity Fair magazine one of her photos of Prince for “one time” use as an “artist reference.” Vanity Fair wanted to use the photo for the creation of illustrations to be included in an article about Prince. Vanity Fair engaged renowned artist, Andy Warhol, to prepare the illustrations. Goldsmith was credited for the source and was paid $400. But, Warhol went on to create additional works using Goldsmith’s photo or the illustrations he created from it. In 2016, the Andy Warhol Foundation for the Visual Arts, Inc. (AWF) licensed one of those works to magazine publisher, Condé Nast, for illustrating another story about Prince. AWF received $10,000 for the license. Goldsmith received nothing.

Shown below are the three creative works in issue in the case:

Goldsmith, 598 U.S. __ (May 18, 2023) at pg. 4 (slip opinion)

Goldsmith informed AWF that the use of the photo in the Condé Nast magazine infringed her copyright in the photo she provided to Vanity Fair in 1984. In response, AWF sued her, claiming that AWF’s use was “fair use” and thus, pursuant to 17 U.S.C. § 107, was not an infringement on Goldsmith’s copyright. Goldsmith counterclaimed for infringement.
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