62 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 63 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C Fair Use Post-Goldsmith In May 2023 the Supreme Court released its long-anticipated decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The Court has addressed the contours of the fair use defense to copyright infringement, codified in Section 107 of the Copyright Act, only infrequently, and numerous stakeholders were hoping the Court would provide useful clarity. In 1984, Vanity Fair licensed Lynn Goldsmith’s photograph of Prince to be used by Andy Warhol as an “artist reference for an illustration” for “one time only.” Unbeknownst to Goldsmith, Warhol created a series of images from that photograph. In 2016, after Prince died, Vanity Fair’s parent company, Condé Nast, licensed from the Warhol Foundation one of those images, the Orange Prince, for the cover of a special edition magazine commemorating Prince. When Goldsmith saw the magazine cover, she notified the Warhol Foundation of her belief that they had infringed her copyright. The Warhol Foundation then sought a declaratory judgment of non-infringement or alternatively, fair use, and Goldsmith counterclaimed for infringement. The district court granted summary judgment in favor of the Warhol Foundation, but the Second Circuit reversed, finding that all four of the statutory fair use factors all favored Goldsmith. On review, the sole question presented to the Court was 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,” 17 U.S.C. § 107(1), weighed in favor of the Warhol Foundation’s licensing of the Orange Prince to Condé Nast. In a 7-2 decision, the Court held that the first factor favored Goldsmith. The Court reasoned that the first fair use factor “focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.” 598 U.S. at 525. In other words, while the transformative nature of the work should be considered, it must be weighed against the “commercial nature of the use.” Id. at 531. The Court found that, in this case, “the purpose of the [Warhol] image is substantially the same as that of Goldsmith’s photograph” because they are both “portraits of Prince used in magazines to illustrate stories about Prince.” Id. at 535. However, the Court emphasized that this is a fact-intensive analysis, and this decision does not mean that derivative works borrowing heavily from an original can never be considered fair use. In dissent, Justice Kagan, joined by Chief Justice Roberts, warned that the decision “impedes non-copyright holders’ artistic pursuits, by preventing them from making even the most novel uses of existing materials” and “constrain[s] creative expression.” Id. at 581-82. The majority in Goldsmith took pains to relay that its “purpose and character” analysis was limited to the specific licensing of the Orange Prince for the Prince tribute magazine cover IP/Media Benjamin Marks Head New York benjamin.marks@weil.com I P
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