The Supreme Court in Andy Warhol Foundation for Visual Arts Inc. v. Goldsmith, No. 21-869 (May 18, 2023) addressed how fair use in Copyright Law applies to “appropriation art,” where a second artist takes most or even all of a first artist’s work and changes it to make a new work. In 1984, photographer Lynn Goldsmith gave Vanity Fair a one-time license to use her photograph of Prince. Under that license, Andy Warhol used Goldsmith’s photo to create “Purple Prince,” which was published in a Vanity Fair article. Warhol then used Goldsmith’s photo to create 15 other works in different colors and media, and sold those as originals and prints, including “Orange Prince.” After Prince’s death in 2016, Vanity Fair used Warhol’s Orange Prince on its cover, and Goldsmith claimed copyright infringement. In a 7-2 decision, the Supreme Court found that the nature of Warhol’s Orange Prince use in Vanity Fair, in the same arena and publication of Goldsmith’s licensed use, was sufficiently commercial to not qualify as fair use. Justices Kagan and Roberts dissented, stating this decision represents a “doctrinal shift” from Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). But, unlike Campbell, Goldsmith and Warhol were dealing with the same subject matter; both were making the works for a commercial purpose; and the same Goldsmith photo was previously licensed for Warhol’s use. Moreover, the Supreme Court narrowly addressed only the character and purpose prong of the four-part fair use test, not the other factors that would be required to find infringement, such as the amount of the work taken or whether the two works are substantially similar. Accordingly, the majority did not characterize its holding as a broad limitation to artists’ rights; rather, as noted by Justices Gorsuch and Jackson’s concurrence, “each challenged use must be assessed in its own terms.” If you have any questions about that assessment, or want to hear our rendition of Purple Rain, please ask.