Andy Warhol Foundation for the Visual Arts v. Goldsmith

If an original work and a 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.

Respondent licensed Vanity Fair magazine’s single use of one of her photos as an “artist reference.” Vanity Fair then hired Petitioner to create artwork using the reference photo. They created multiple works based on Respondent’s photo, known as the “Prince Series,” which were published on more than one occasion. Respondent told Petitioner that she believed they infringed on her copyright, and Petitioner brought suit, asserting fair use. The appellate court reversed the trial court’s grant of Petitioner’s summary judgment, holding that the four fair use factors favored Respondent. The Court only examined the first fair use factor: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.”  17 U.S.C. §107. The Court held that if an original work and a 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. The Court disagreed with Petitioner’s argument that the artwork was transformative and conveyed a different meaning or message and determined the use was of a commercial nature because both Petitioner and Respondent licensed their respective works. Because both parties’ works were used by magazines to accompany articles about Prince, they shared “substantially the same purpose.” Thus, the first fair use factor favored Respondent.  AFFIRMED.