Today, in an opinion that purports to be narrow but will have sweeping implications, the Supreme Court ruled that Andy Warhol’s well-known “Orange Prince” illustration is not a transformative fair use of Lynn Goldsmith’s photograph of Prince. Discounting the new expression and meaning that Warhol added to the photograph through his famous silk-screening process, the Supreme Court majority suggested that Warhol’s contributions were “modest alterations” and focused instead on the commercial use of the allegedly infringing work at issue.
Because the Andy Warhol Foundation (“AWF”) and Goldsmith both licensed their respective works to magazines, Warhol’s Orange Prince was not transformative and AWF may be liable for copyright infringement. Now, to determine whether a work is transformative as opposed to an infringing derivative work, artists must question—potentially far in advance—whether the new work will share substantially the same commercial purpose as the original work. Rather than prognosticate, artists may be well-served by securing a license to the original work just in case.
