Different interpretation of “purpose and character of the use” in US fair use doctrine – Andy Warhol decision commentary

The Andy Warhol decision released in May of this year reflects the US court’s latest interpretation of the fair use doctrine, and sparked controversy of what constitutes the first factor in the fair use doctrine, namely, “the purpose and character of the use”. The differences between the majority and dissent opinions highlight the tension between two competing objectives of copyright law, namely protecting the creator’s rights, and the rights of the user/consumer of the copyright material.

The decision, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al.[1], involves two artists, Andy Warhol, an American visual artist and leading figure in the pop art movement, and Lynn Goldsmith (the less famous, but still trail-blazing, photographer). The supreme court affirmed that Warhol’s painting of rock star “the Prince” did not make fair use of Goldsmith’s photo which the painting was based on.

The fair use doctrinein US is as follow:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The appeal to the Supreme court centers around the first factor in the fair use doctrine, namely, the purpose and character of the use. The majority framed the purpose as the commercial purpose of Andy Warhol Foundation (AWF) in licensing the work to Vanity Fair. The majority maintained that the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Conde West. As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it shares substantially the same purpose. In assessing the purpose of the use, the majority looked to AWF’s commercial licensing rather than Warhol’s original creation of the artwork. On the other hand, the dissent looks to the artistic distinctiveness to determine the “character” of the use. The dissent relied on expert testimony from artists and conducted artistic analysis on Warhol’s work on the Prince, his previous work, and other analogous creation to differentiate “transformative copying” from mere copying.

Both the majority and dissent cited Campbell, a foundational case in the US fair-use doctrine. The dissent highlighted a guiding question used in Campbell, did the work “[do] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message”?[2] When it did so to a significant degree, the work is deemed the work “transformative” and held that the fair-use test’s first factor favors the copier. The majority, on the other hand, qualified the Campbell decision by saying that “Campbell cannot be read to mean that 107(1) weighs in favor of any use that adds new expression, meaning, or message.” The majority placed much more weight “on the further purpose or different character” rather than the “new expression, meaning or message”, finding that AWF and Goldsmith shared the same commercial purpose. In doing so, the majority seemed to double down the latter part of first factor in fair use, “commercial nature or is for non-profit educational purposes”, without giving any weight to the new artistic expression that was contemplated in Campbell.

In my opinion, the majority disregarded the literal meaning of the guiding question in Campbell by over-emphasizing the commercial nature of the piece. The result of the Warhol decision, said Harvard Law School Professor Rebecca Tushnet, is “extremely unfortunate for creators because it doesn’t provide guidance for future cases.” It remains to be seen how future case laws would help clarify the first factor in the fair use doctrine.

The Warhol decision reflects different ways of interpreting the “purpose and character of the use”, which is also the first factor in the fair dealing doctrine in Canadian copyright law. As United Airlines Inc. v. Cooperstock demonstrated, the confusion around what the purpose and character of the use means is not confined to US case law. In a Canadian context, we do not have the guiding question by Campbell, and commercial use weighs against fair dealing in the analysis of the first factor. In U.S. case laws on the other hand, from the Warhol decision it seems that court would not even need to consider the guiding question by Campbell if a commercial use is found and if defendants use the work in the same way as the plaintiffs. The question is whether that would deter the progression of arts and sciences, i.e. the main spirit of copyright law? If we adopt a connector view to artistic creation and innovation, artistic creations are not created out of thin air but are built upon the shoulders of the giants. Perhaps the court needs to scrutinize its interpretation of the fair dealing factors to reflect on whether it truly helps to achieve the goal of copyright law.

[1] 598 U.S. Andy Warhol Foundation for the Visual Arts, Inc., Petitioner v. Lynn Goldsmith, et al. (2023)

[2] Campbell v. Acuff-Rose Music, Inc,, 510 U.S. 569, 579 (1994)