When Purpose Eclipses Meaning: Warhol v. Goldsmith and the Narrowing of Transformative Fair Use

The Supreme Court's 7-2 decision in Andy Warhol Foundation v. Goldsmith (May 18, 2023) reframed fair use's first factor, holding that a commercial use sharing the same purpose as the original photograph does not become 'transformative' merely by adding new artistic meaning.

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (U.S. May 18, 2023), the Supreme Court resolved one of the most closely watched copyright disputes in a generation by a vote of 7-2. Justice Sotomayor wrote for the majority; Justice Gorsuch concurred, joined by Justice Jackson; and Justice Kagan dissented, joined by Chief Justice Roberts. The Court affirmed the Second Circuit and held that the first statutory fair use factor — “the purpose and character of the use,” 17 U.S.C. 107(1) — weighed against the Andy Warhol Foundation’s 2016 commercial licensing of an image derived from photographer Lynn Goldsmith’s portrait of the musician Prince. The decision is the modern Court’s most consequential statement on visual-art copyright, and it recalibrated how courts measure “transformative” use across photography, design, and appropriation art.

At a glance

Caption: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869.
Court / date: Supreme Court of the United States, decided May 18, 2023.
Vote: 7-2. Majority by Sotomayor; concurrence by Gorsuch (joined by Jackson); dissent by Kagan (joined by Roberts).
Disposition: Affirmed the U.S. Court of Appeals for the Second Circuit.
Holding: Where an original work and a secondary use share substantially the same purpose, and the secondary use is commercial, the first fair use factor is likely to disfavor the copier absent some other justification. New aesthetic meaning or message, standing alone, is not dispositive.
Scope: The Court evaluated only the Foundation’s commercial licensing of “Orange Prince” to Condé Nast — not the creation, display, or sale of the underlying Warhol works.

The factual frame: one photograph, two commercial licenses

The dispute traces to a single image. In 1981, Lynn Goldsmith photographed Prince in a studio session, retaining the copyright. In 1984, Vanity Fair licensed that photograph from Goldsmith for $400 as an “artist reference,” and Andy Warhol used it to create a purple silkscreen illustration that accompanied a magazine article about the musician. Unbeknownst to Goldsmith, Warhol went further, producing sixteen works — the “Prince Series” — derived from her photograph.

The litigation-defining event came decades later. After Prince’s death in 2016, the Andy Warhol Foundation licensed one of those works, “Orange Prince,” to Condé Nast for $10,000 to illustrate a commemorative magazine tribute. Goldsmith received nothing. When she asserted infringement, the Foundation sued for a declaratory judgment of non-infringement, invoking fair use. The district court granted summary judgment to the Foundation, reasoning that the Prince Series was transformative because it conveyed a different meaning. The Second Circuit reversed, and the Supreme Court agreed to review a single, deliberately narrow question: whether the first fair use factor favored the Foundation’s particular commercial use.

That narrowing matters. The Court did not opine on whether Warhol infringed when he made the Prince Series, nor on whether museum display would be fair use. It addressed the 2016 licensing transaction — a head-to-head competition with Goldsmith’s own licensing market — and nothing more.

The legal pivot: purpose over perceived meaning

The Foundation’s theory, which the district court had accepted, was rooted in the language of Campbell v. Acuff-Rose Music, Inc. (1994): a work is “transformative” if it adds something new, with a further purpose or different character, altering the original with new expression, meaning, or message. Read expansively, that formula seemed to invite courts to act as art critics, asking whether a downstream artist had imbued a borrowed image with fresh significance — flattening a celebrity photograph into a meditation on fame, say.

Justice Sotomayor’s majority rejected that reading as proving too much. Because “meaning” can almost always be discerned, a meaning-centric test would allow the transformative inquiry to “swallow” the copyright holder’s exclusive right to prepare derivative works under Section 106(2) — a right that by definition covers recasting and adaptation. The majority therefore relocated the first-factor analysis away from the viewer’s interpretation of the new work and toward the use’s actual function in the marketplace.

The controlling formulation is precise: “If an original work and secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.” Applied to the record, both Goldsmith’s photograph and Orange Prince served the same essential purpose — to illustrate magazine stories about Prince — and the Foundation’s use was indisputably commercial. The Court was careful to add a counterweight: “Although new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.” New expression, in other words, is admitted as evidence but stripped of its talismanic power.

Justice Gorsuch’s concurrence, joined by Justice Jackson, anchored the result still more firmly in statutory text. The first factor, he stressed, asks about “the purpose and character of the use” — not the artist’s subjective intent or aesthetic achievement. The relevant question is what the defendant did with the copy, not what the original creator was thinking.

The dissent: a defense of transformation

Justice Kagan’s dissent, joined by the Chief Justice, was unusually pointed. She accused the majority of turning “its back on how creativity works” by demoting transformation to a near-irrelevance. In her view, the majority effectively decided the case on “a marketing decision” — that Warhol’s licensing of the silkscreen to a magazine precluded fair use — and thereby mooted the more important question of what artistic value Warhol had added to Goldsmith’s image. “Because the artist had such a commercial purpose,” she wrote, “all the creativity in the world could not save him.” The dissent warned that the ruling would chill the creation of new art and impoverish the public domain of expression that builds on what came before.

The exchange between Sotomayor and Kagan is the doctrinal heart of the opinion: a contest between a market-substitution conception of fair use and an expression-centered one. The majority won, but it did so on grounds carefully cabined to commercial, competing uses.

Open questions

How “high” is “highly similar”? The test turns on shared purpose, but the Court gave little guidance on how granularly to define purpose. Is the relevant purpose “illustrating a magazine,” “depicting Prince,” or “making art”? The level of generality will often decide cases.
What counts as “some other justification”? The majority left a safety valve — copying may be justified even where purposes overlap — but it illustrated the concept mainly by reference to parody and commentary that target the original. The boundaries of acceptable justification remain unmapped.
Does non-commercial or display use survive? Because the Court expressly reserved judgment on creation, museum display, and sale of original works, the fair use status of much appropriation art is unresolved.
How does this interact with generative AI training? Although the case predates the current wave of AI copyright litigation, its skepticism toward “new meaning” as a fair use trump card is already being invoked in disputes over machine learning on copyrighted images.

Implications

Photographers and licensors gain leverage. The decision protects the downstream licensing markets of original creators, particularly in editorial and stock photography, where a competing commercial license now strongly disfavors a fair use defense.
Appropriation artists and design studios face heightened risk. Adding style, color, or conceptual gloss to a borrowed image is no longer a reliable fair use shield when the end use competes commercially with the source.
Counsel should analyze the use, not the artwork. Fair use opinions must now focus on the specific challenged transaction and its market function, distinguishing creation from commercialization.
“Justification for copying” is the new battleground. Practitioners should be prepared to articulate why borrowing the particular source was necessary — parody, criticism, or commentary aimed at the original — rather than relying on aesthetic transformation alone.
Licensing is the safer path. Where a use competes with the original’s markets, clearing rights is increasingly prudent.

Frequently asked questions

Did the Supreme Court rule that Warhol’s art infringed Goldsmith’s copyright? No. The Court decided only that the first fair use factor disfavored the Foundation’s 2016 commercial license of “Orange Prince” to Condé Nast. It expressly declined to address the creation, display, or sale of the Prince Series works, and it did not enter a final infringement judgment.

Is “transformative use” dead after Warhol? No, but it is diminished as a standalone argument. Transformative new expression remains relevant to the first factor, yet it is no longer dispositive. When a secondary use shares the original’s purpose and is commercial, that combination will usually outweigh claims of new meaning.

What is the single most important takeaway for creators? Focus on the purpose and market of the specific use. If your use competes commercially with the copyright owner’s own licensing market and serves the same function, adding artistic meaning may not be enough to establish fair use.