HB Media Minute Episode 34: U.S. Supreme Court finds Andy Warhol’s use of Prince photograph infringing, provides guidance on first fair use factor

The Legal Landscape

In a copyright case closely watched by content creators, the U.S. Supreme Court held, 7-2, that the first fair use factor—“the purpose and character of the use” —weighed against Andy Warhol’s use of Lynn Goldsmith’s black-and-white photograph of Prince to create a colorful silk-screen illustration of the musician that was later licensed to Vanity Fair without Goldsmith’s consent. Justice Sonia Sotomayor, writing for the majority, first explained that courts analyzing the first fair use factor should balance “the degree to which the use has a further purpose or different character” against the “nature of the use,” whether commercial or nonprofit. Under that rubric, the Court next found that even though Warhol’s illustration “adds new expression to Goldsmith’s photograph,” the first fair use factor favored Goldsmith because the works shared “substantially the same commercial purpose”—Goldsmith’s photograph and Warhol’s illustration were both “portraits of Prince used to depict Prince in magazine stories about Prince.”