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  • Curt Levey

SCOTUS Rules Warhol Silkscreen Infringed Photo, as CFJ Brief Urged



May 18, 2023


Committee for Justice president Curt Levey released the following statement on the Supreme Court’s ruling today in Andy Warhol Foundation v. Goldsmith, in which CFJ filed an amicus brief:

Today’s 7-2 ruling by the Supreme Court was a resounding victory both for Lynn Goldsmith—a renowned photographer whose 1981 photo of Prince was copied in an Andy Warhol silkscreen image licensed to Conde Nast by the Foundation in 2016, without giving Goldsmith any credit or payment—and for the strong protection of copyright that CFJ argued for in its amicus brief.


The Andy Warhol Foundation (AWF) argued that Warhol’s silkscreen constituted “fair use” of Goldsmith’s photo because it added “new meaning or message”—specifically a comment on the “dehumanizing nature” of celebrity—to the photo, making it “transformative.”


But as CFJ’s brief pointed out, AWF was effectively asking the Supreme Court to hold that “anytime an author reproduces someone else’s original work in its entirety, but superimposes his own subjective interpretation upon it, the new work is transformative under the fair use doctrine.” “[N]either the text of the Copyright Clause, nor the history of copyright law, nor this Court’s precedent can support such a reading,” we concluded.


Today the Supreme Court agreed, ruling that precedent “cannot be read to mean that [copyright law] weighs in favor of any use that adds some new expression, meaning, or message. Otherwise, ‘transformative use’ would swallow the copyright owner’s exclusive right to prepare derivative works.” Fair use is an objective inquiry into the nature of the allegedly infringing work, not an inquiry into the subjective intent of the copier, the Court said.


Adding to its thorough rebuke of AWF, the Court pointed out that the Conde Nast image had substantially the same purpose as the Goldsmith photograph—a portrait of Prince used to depict him in a magazine article—and was commercial in nature.


CFJ got involved in this case because central to its mission is the preservation of the Constitution's protection of individual liberty, including the fundamental civil right to the fruits of one’s own labor, which the Constitution’s Copyright Clause protects.


CFJ’s brief was authored by John Reeves (lead counsel) of Reeves Law and CFJ president Curt Levey.


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