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October 14, 2022

Warhol v. Goldsmith – My Hot Take

Some interesting and telling moments in yesterday’s Supreme Court oral argument of the Warhol v. Goldsmith case started with the Syracuse hypothetical Justice Thomas posed to the attorney for the Warhol Estate. At bottom the case is about whether Warhol’s orange color alteration of Goldsmith’s photo of Prince qualifies as copyright fair use. Justice Thomas asked: “let’s say that I’m also a Syracuse fan and I decide to make one of those big blowup posters of Orange Prince and change the colors a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me?” Warhol’s attorney hypothesized that if Warhol did sue for that, Warhol should win even though Goldsmith should lose this case, basically because Warhol’s work is more creative than Justice Thomas’.

I can’t see why, or that it should matter. Warhol’s argument is that Orange Prince is fair use because Warhol “transformed” the “meaning” of Goldsmith’s photo of Prince. According to Warhol, the photo show’s Prince’s vulnerability but Warhol’s addition of color and other alterations render Prince in a more “iconic” way. If Warhol is correct, Thomas’ poster must qualify as fair use of Warhol because it “transforms” Warhol’s work into one demonstrating support for the ‘Cuse. The Warhol Estate’s unwillingness to concede the Syracuse hypothetical seems unprincipled and likely to hurt its case. Justice Thomas’ hypothetical highlights that one cannot expand the scope of fair use without diminishing the scope of copyright. If the Warhol Estate doesn’t have to license Orange Prince, its own copyright protection must be similarly narrow and Justice Thomas shouldn’t have to license Go Orange. Which way should it be?