On May 18, 2023, the U.S. Supreme Court ruled against the Andy Warhol Foundation in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the most consequential fair use decision in nearly three decades. The Foundation had licensed a Warhol portrait of Prince to Condé Nast for a magazine tribute. In a 7-2 decision, the Court held that this specific use was not transformative and that the first fair use factor favored photographer Lynn Goldsmith, whose 1981 photograph underpinned the Warhol works. The reason was straightforward: the license served the same purpose as Goldsmith's own photograph, depicting Prince in a magazine, and substituted for her licensing market.
That single holding reorganized how courts, rights holders, and reusers argue about transformed copies. If someone has restyled your photograph, illustration, or track and put it to work in your market, your enforcement position is stronger than it was before this case. If you are the one building on someone else's work, the argument that you made it your own no longer carries the weight it once did.
The Facts: A 1981 Photo, a 1984 License, and a 2016 Magazine Tribute
Lynn Goldsmith photographed Prince in 1981 on assignment for Newsweek. The magazine never ran the pictures, and Goldsmith kept her copyright.
In 1984, Vanity Fair paid $400 to license one of the photographs as an artist reference, commissioned Andy Warhol to create an image for a Prince article, and credited Goldsmith in the November 1984 issue. Warhol delivered a purple-toned silkscreen for that commission, then kept going on his own: fifteen more works built from the same photograph, with no further license. That set became known as the Prince Series. Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts controls his rights today.
Prince died in April 2016. Condé Nast, Vanity Fair's publisher, prepared a commemorative edition, The Genius of Prince, and licensed a Warhol image known as Orange Prince from the Foundation for $10,000 to run on the cover. Nobody asked Goldsmith. Nobody paid her. She recognized her photograph on the newsstand, and her representatives raised the issue with the Foundation.
The accused party then went to court first. In 2017, the Foundation sued for a declaratory judgment that its licensing was fair use, and Goldsmith counterclaimed for infringement. The Southern District of New York granted the Foundation summary judgment in 2019, reasoning that Warhol's works were transformative. The Second Circuit reversed in 2021, holding that the Prince Series was not transformative as a matter of law and weighing all four fair use factors for Goldsmith. The Supreme Court took the case to answer a single question: whether factor one favors the Foundation.
What the Supreme Court Held in Warhol v. Goldsmith
The Court affirmed the Second Circuit 7-2, reported at 598 U.S. 508. Justice Sotomayor wrote for the Court, joined by Justices Thomas, Alito, Kavanaugh, and Barrett. Chief Justice Roberts joined Justice Kagan's dissent. Justice Gorsuch, joined by Justice Jackson, concurred in the judgment.
Three propositions carry the opinion.
First, factor one asks about the purpose and character of the specific use being challenged, the license to Condé Nast, not the Prince Series as art objects, and not hypothetical other uses.
Second, a new aesthetic is not automatically a new purpose. The Court accepted that Warhol's silkscreens conveyed a different meaning and message than Goldsmith's raw black-and-white photograph. But Goldsmith's photograph existed to depict Prince for magazine publication, and that is exactly what the Foundation's license did with it.
Third, when a use is commercial and plausibly substitutes for the original or its derivatives, its commercial character weighs more heavily against fair use. This license checked both boxes. Factor one favored Goldsmith, and the case returned to the lower courts on everything else.
How Fair Use Factor One Works Now: Purpose, Not Style
Fair use lives in 17 U.S.C. § 107. The first factor looks at the purpose and character of the use, including whether the use is commercial. Since Campbell v. Acuff-Rose Music in 1994, the 2 Live Crew parody of "Oh, Pretty Woman", transformativeness has held a central place in that inquiry. A use with a genuinely new purpose, such as commentary or parody aimed at the original, can outweigh commercial intent.
In the decades after Campbell, some courts drifted toward treating visible alteration as enough. New expression, new meaning, new message, therefore fair use. The district court in this case followed exactly that logic: Warhol's style transformed the photograph, so the Foundation's licensing was transformative. The Supreme Court corrected that drift.
The workable test after Warhol is functional, not aesthetic. Ask what job the challenged use performs. If the answer is the same job the original performs, illustrating a magazine story about Prince, selling a product, filling a profile image slot, the use is not transformative in any way that matters to factor one, regardless of how different it looks. If the use does something the original does not do, such as criticizing or parodying the original itself, factor one starts tilting toward fair use.
The contrast with Google v. Oracle, the Java API case, decided in 2021, is instructive. There, reusing code to build a new platform served a purpose the original could not, and the Court treated transformativeness generously. Warhol narrows that generosity for same-market uses without disturbing the earlier ruling. Justice Kagan, who wrote Google, dissented here, warning that the majority undervalued transformative art. Two lines drawn by the same Court, two years apart, which is why factor one has to be analyzed use by use rather than by slogan.
Why the Commercial Context and Market Substitution Decided the Case
Nobody disputed that both sides operated commercially. Goldsmith shoots on commission and licenses her photographs. The Foundation licenses Warhol's art, and licensing was the centerpiece of its defense.
Campbell taught that commerciality carries limited weight when a use is genuinely transformative. Warhol supplies the other half of the rule: commerciality weighs more heavily when the use is substitutive, when it fills demand the original was created to serve.
The record made substitution hard to deny. Goldsmith licenses her photographs to magazines for stories about their subjects. The Foundation licensed a Warhol depiction of Prince to a magazine for a story about Prince. An editor choosing cover art for a Prince tribute could buy either one. The $10,000 Condé Nast paid the Foundation is money that might otherwise have gone to the photographer whose image made the series possible. Goldsmith's share was zero.
Market harm is formally the fourth factor, and the Supreme Court decided only the first. But the Court folded substitution into factor one by treating a use that competes with the original's licensing market as more heavily commercial. In practice, factors one and four now travel together in this scenario.
The lesson for rights holders is to document your licensing activity. If you regularly license your work into a market, a commercial copy competing in that same market is now weighted against fair use on factor one. The Foundation could not argue around that record. Most infringers will not manage it either.
What the Court Did Not Decide
Headlines made the ruling sound like a verdict on Warhol's art. It was not. The Court resolved one factor for one use.
It did not decide whether the Prince Series infringes Goldsmith's photograph as works. It did not decide the other three fair use factors. And it did not decide how other uses of the same images, a museum exhibition, a sale of the physical silkscreens, a textbook reproduction, would come out. Justice Gorsuch's concurrence, joined by Justice Jackson, pressed exactly this point: the same image can be a fair use in one context and not in another, and the opinion should not be read as a blanket rule against derivative art. The case went back to the district court on the remaining questions.
The use-specific framework is already traveling into newer disputes. Courts and parties in cases involving AI-generated content and copyright cite Warhol when asking whether a specific output substitutes for the market of the original works it was trained on. Those cases are still developing, so take the framework, not any particular outcome.
What the Ruling Changed for Photographers, Artists, and Musicians
For owners of the underlying work, the change is real. Restyled versions, filtered photos, redrawn illustrations, merchandise built from your art, derivative graphics that keep your composition, used to arrive with a built-in defense. After Warhol, that defense only works when the new use serves a different purpose. If the new version is sold into your market, factor one now reads against the copier, and your enforcement posture improves accordingly. That reasoning anchors the modern takedown strategy for photographers, and it applies with nearly equal force to illustrators, designers, and musicians.
For creators who build on existing work, the guidance is blunter. When your output is commercial and lands in the same market as your reference material, license the reference. The 1984 Warhol commission was licensed. It was the unlicensed expansion of the series, monetized through the 2016 tribute license, that cost the Foundation the case.
The same logic answers a question we hear constantly from video creators: whether you can use copyrighted music on YouTube if you alter, remix, or re-record it enough. Warhol's framework says the answer depends on the specific use and its market. A re-recorded track that still functions as a video's music is doing the licensed track's job, whatever changes you made.
How the Decision Should Shape Your DMCA Filing Decisions
First, keep the mechanics straight. A DMCA notice is not a copyright judgment. It asks a platform to remove content under the safe-harbor rules; the uploader can respond with a counter-notice, and the dispute then moves toward federal court, where fair use actually gets decided. Understanding the difference between copyright law and the DMCA process matters, because filing strategy and litigation strategy are different exercises.
Second, do the fair use analysis before you file, and write it down. The Ninth Circuit's Lenz decision, the dancing baby case, requires a rights holder to form a good-faith view of fair use before sending a takedown notice, and a notice sent in disregard of obvious fair use can expose the sender to misrepresentation liability under 17 U.S.C. § 512(f). Warhol gives you a concrete way to do that analysis. A short pre-filing review:
- Name the specific use: platform, placement, what function the copy performs, and who profits.
- Compare the purpose of that use to the purpose your work serves when you license it.
- Ask whether the copy substitutes, whether a customer who wanted yours would accept theirs instead.
- If the use is commercial, same-purpose, and substitutive, factor one favors you, and the notice is defensible.
- If the use is critique, parody, or something your original does not do, stop and reconsider, the situations where you should not file a DMCA notice are exactly the ones this framework protects.
One flag before you act: fair use is a US doctrine. The UK relies on narrower fair dealing, the EU and Canada use closed lists of exceptions, and platforms enforce their own policies on top of local law. If your problem spans countries, start with our guide to takedown rules by country and expect the analysis to shift with the jurisdiction.
Frequently Asked Questions About the Warhol Goldsmith Fair Use Ruling
Did the Supreme Court rule that Warhol's Prince Series infringed?
No. The Court resolved only the first fair use factor, and only for one use: the Foundation's license of Orange Prince to Condé Nast for its tribute magazine. It held that factor one favored Goldsmith and sent the remaining questions back to the lower courts. Whether the Prince Series itself infringes, and how the other three factors come out, were left undecided.
Is a stylized or altered version of my work still copyright infringement?
Often, yes, when the new version does the same job. The ruling did not make every derivative work infringing; fair use remains fact-specific. But Warhol confirmed that visible restyling alone does not establish fair use where the copy is used commercially as a substitute for the original. Courts now weigh purpose and market overlap before giving any weight to style changes.
How should the Warhol decision change the DMCA notices I send?
Anchor the notice to the specific use. Identify what the copy is doing, where it appears, who profits, and whether it substitutes for your licensing market. Under the Lenz line of cases you must form a good-faith view of fair use before filing anyway, and Warhol supplies the framework. Write that analysis down before you send anything.
Does Warhol v. Goldsmith apply to AI-generated images?
Not directly, and courts are still working this out. The case involved a silkscreen, not a machine-learning model, but its use-specific framework is already cited in litigation over systems trained on photographers' work and in disputes over individual outputs. The question those courts keep returning to is whether the specific use substitutes for the original's market.
Does this fair use analysis apply outside the United States?
No. Fair use is a United States doctrine under 17 U.S.C. § 107. The United Kingdom relies on narrower fair dealing, the European Union and Canada use fixed exception lists, and outcomes vary by country. Major platforms also layer their own policies on top of local law, so a use that survives US fair use analysis may still come down elsewhere.
Your Next Steps: A Pre-Enforcement Checklist
This is practical analysis from a takedown service, not legal advice. Before you spend money on enforcement, work through this list:
- Describe the specific use in one sentence: platform, placement, function, and who is paying for it.
- Compare that use's purpose to what your work does when you license it.
- Ask the substitution question straight: would a customer who wanted yours accept theirs instead?
- Assemble your takedown evidence, original files, registration records, and your licensing history.
- If the work is commercially important and unregistered, read up on whether copyright registration is worth it; registration affects what you can recover in court.
- If the use is commercial and substitutive, file the notice or escalate through professional help. If it is genuine commentary or parody, leave it alone.
- If you would rather have the analysis, the notices, and the escalation handled end to end, review our pricing and send us the specifics.