In Warhol v. Goldsmith, decided in May 2023, the Supreme Court ruled 7-2 that the Andy Warhol Foundation’s licensing of a Warhol silkscreen of Prince to a magazine was not a fair use of the Lynn Goldsmith photograph it was based on. The decision narrows the “transformative use” doctrine that had dominated fair use analysis for nearly three decades. Adding new expression, meaning, or message to a copyrighted work is no longer enough on its own to win a fair use defense when the new work is sold for the same commercial purpose as the original.1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
The Dispute in Brief
Lynn Goldsmith photographed Prince in 1981. In 1984, Vanity Fair paid her $400 to license one of those photos as an “artist reference for an illustration” and hired Andy Warhol to make the illustration. Warhol did not stop at one image. He created 16 works based on Goldsmith’s photograph, collectively known as the Prince Series. Neither Goldsmith nor Vanity Fair knew about the additional works.2Justia. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith
The conflict surfaced after Prince died in 2016. Condé Nast published a tribute magazine and paid the Warhol Foundation $10,250 to license one of the series images, “Orange Prince,” for the cover. Goldsmith received nothing and no credit. When she raised a copyright claim, the Foundation sued first, seeking a declaration that its use was lawful. A federal district court sided with the Foundation. The Second Circuit reversed. The Supreme Court took the case.1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
What the Court Held
Justice Sotomayor wrote for the 7-2 majority. The Court evaluated one specific transaction: the Foundation’s commercial licensing of “Orange Prince” to Condé Nast. It did not pass judgment on Warhol’s artistic legacy or on whether the Prince Series had value as art.
The reasoning centered on the first fair use factor, the “purpose and character” of the use. Goldsmith’s photograph and the Foundation’s silkscreen were both licensed to magazines as portraits of Prince to illustrate stories about the musician. In that setting, the “Orange Prince” image served “substantially the same” purpose as Goldsmith’s original. When the purpose of the copied use matches the purpose of the original, and the copier’s use is commercial, the first factor weighs against fair use.1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Fair use, the Court said, is an “objective inquiry into what a user does with an original work,” not a judgment call about what a critic or curator sees in the finished piece. A work can look and feel completely different from its source and still fail the test if it competes in the same market for the same purpose.
Why Campbell’s Soup Cans Are Different
The Court went out of its way to explain that not every Warhol work raises the same problem. His Campbell’s Soup Cans series uses a copyrighted advertising logo for an entirely different purpose: commentary on consumerism. That purpose, the Court observed, is “orthogonal to advertising soup.” No one buys a Warhol soup can painting to sell soup, and the original logo is the target of the commentary rather than merely a source of raw material.1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
The Prince Series licensing did not fit that pattern. The Foundation was not commenting on Goldsmith’s photograph. It was selling access to a portrait of Prince for the same reason Goldsmith would have licensed hers: to illustrate a magazine story about the musician. That direct market overlap sank the fair use defense.
How the Transformative Use Test Changed
Since the Court’s 1994 decision in Campbell v. Acuff-Rose Music, lower courts had leaned heavily on whether a new work was “transformative,” meaning it added new expression, meaning, or message. Over time that inquiry had swelled to the point where a finding of transformativeness often decided the case by itself, with the other fair use factors treated as afterthoughts.
The Warhol ruling did not abolish transformative use. It recalibrated it. The key line from the majority: adding “new expression, meaning, or message” to an original is “not, without more, dispositive of the first factor.” Aesthetic transformation must be weighed against the commercial character of the use and whether it serves the same purpose as the original.1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
The practical result: if a new work and the original share the same or highly similar purpose, and the new work is used commercially, the first factor will likely weigh against fair use unless the copier can show some further justification for the copying, such as commentary, criticism, parody, or another use that targets the original itself.
Justice Kagan’s Dissent
Justice Kagan, joined by Chief Justice Roberts, wrote a sharp dissent. Her central objection was that the majority sidelined the “distinctiveness and newness” of a secondary work in favor of a much simpler question about commercial competition. Copyright law, she argued, exists to promote creativity, and a rigid regime “stifle[s]” it by preventing artists from building on prior work. She warned the ruling would “impede new art and music and literature” and “thwart the expression of new ideas and the attainment of new knowledge.”1Supreme Court of the United States. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith
Kagan also pointed to a tension in the majority opinion. If newness still counts, as the majority sometimes acknowledged, then dismissing all the newness Warhol added because the Foundation made a licensing decision that resembled Goldsmith’s own licensing activity punishes a marketing choice rather than evaluating the artwork.
If You Build on Someone Else’s Copyrighted Work
The ruling does not mean all appropriation art is now infringement. What it means is that the purpose of your use matters as much as how much you changed the source. Ask whether your finished product will end up in the same market as the original. A collage artist who incorporates a photograph into a large-scale commentary on media consumption stands on far stronger ground than one who crops, filters, and relicenses the same photograph as a standalone portrait. The more your use resembles the original creator’s own licensing activity, the weaker your fair use argument becomes.
Commentary, criticism, parody, teaching, and news reporting remain the classic fair use categories listed in the statute, and they remain robust after Warhol because they typically serve a purpose different from the original.3Office of the Law Revision Counsel. 17 USC 107 – Limitations on Exclusive Rights: Fair Use What weakened is the argument that a commercial repackaging is protected because the second artist gave it a new feel.
When your intended use sits in the gray zone, licensing is now the safer path. Goldsmith’s original $400 fee looks trivial next to the years of litigation this case required.
If Your Work Gets Borrowed
The ruling meaningfully strengthens original creators when a derivative work competes in their market. Photographers, illustrators, and musicians have a clearer basis to challenge works that repackage their originals for the same commercial purpose. Before Warhol, defendants often deflected infringement claims by showing that their version looked or felt different. That argument alone no longer carries the day.
The decision also connects the first fair use factor to the fourth, market harm. When a derivative and the original are both licensed as commercial portraits of the same subject, the derivative is a direct substitute regardless of its artistic qualities. Courts will scrutinize whether the challenged use competes in a market that the copyright holder either serves or could reasonably enter.
Substantive rights are only useful if you can enforce them. A work must be registered with the U.S. Copyright Office before you can file an infringement suit in federal court, and the timing of registration controls what remedies you can seek. Registering early, before infringement begins or within three months of first publication, preserves the option to pursue statutory damages and attorney’s fees rather than being limited to actual damages and the infringer’s profits.
What Warhol Means for AI Training and Generative Content
The decision does not address artificial intelligence directly, but its logic is squarely relevant. If the first fair use factor now turns on whether a secondary use serves the same commercial purpose as the original, then AI systems that generate images, text, or music competing in the same markets as their training data face a serious fair use problem.
The U.S. Copyright Office, in a 2025 report on AI and copyright, stated that commercial use of “vast troves” of copyrighted works to produce content competing with the originals in existing markets “goes beyond established fair use boundaries.” Early post-Warhol case law is starting to test this ground. In Thomson Reuters v. Ross Intelligence, a federal court applied the Warhol framework to an AI legal research tool’s use of copyrighted headnotes, focusing on whether the tool competed with the original product in the same market. The court noted that because the tool was not generative in the traditional sense, the separate question of whether a generative model producing new material from training data would be sufficiently transformative remains open.
For anyone whose work might end up in a training set, the takeaway is the same as for any other creator after Warhol: if the output competes with your original in the same market, you now have a stronger commercial-purpose argument than you did before May 2023.