Copyright Act of 1976 — Fair Use —

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

Art is imitation (at least according to Plato and Justice Kagan).1 Last
Term, in Andy Warhol Foundation for the Visual Arts, Inc. v.
Goldsmith,2 the Supreme Court held that the licensing of Andy Warhol’s
“Orange Prince” portrait to Condé Nast was not a transformative use of
Lynn Goldsmith’s reference photo because “Goldsmith’s original photo-
graph of Prince, and the Andy Warhol Foundation’s (AWF) copying use
of that photograph . . . share substantially the same purpose, and the
use is of a commercial nature.”3 Exhibiting skepticism toward subjec-
tive reactions to artistic works, the majority’s analysis resembled for-
malist art philosophy, while Justice Kagan — whose dissent defined the
value of the Prince series through its exhibition of new expression — em-
bodied the techniques of expressionism.4 Theories of art philosophy5
help to explain the fundamental disagreements in the Court’s under-
standing of transformative use. While a formalist approach furthers
judicial restraint, such a technique frustrates the fair use defense’s
role as an “escape valve” for First Amendment values,6 as the First
Amendment is uniquely concerned with the specific messages conveyed
by the speaker and perceived by the audience.
“This copyright case involves not one, but two artists.”7 The first,
Andy Warhol, was a world-renowned artist, “known for his blotted-line
ink drawings, using a process he developed.”8 The second artist, Lynn
Goldsmith, “is less well known” but “a trailblazer,” too.9 Goldsmith is a
recording artist, film director, celebrity portrait photographer, and one

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 The “imitation” described by Plato referred to imitation of the real world, while Justice Kagan’s
use of imitation referred to the recycling of artistic elements. Compare Cornelius Chukwudi Amadi,
Art as Imitation in Plato’s Philosophy: A Critical Appraisal, 20 J. APPLIED PHIL. 125, 127 (2022)
(“In the Republic, Plato argues that art of any kind and epic poetry in particular is an imitation
(mimesis), and the creator of this imitation . . . is an imitator.”), with Andy Warhol Found. for the
Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1305–11 (2023) (Kagan, J., dissenting).
2 143 S. Ct. 1258.
3 Id. at 1287.
4 These theories have been the leading theories of art philosophy within the past century.
F. David Martin, On the Supposed Incompatibility of Expressionism and Formalism, 15 J.
AESTHETICS & ART CRITICISM 94, 94 (1956) (“Aesthetics in the last hundred years has been
dominated by expressionists and formalists.”).
5 “[T]hese theories often have multiple variations.” Glen Cheng, The Aesthetics of Copyright
Adjudication, 19 UCLA ENT. L. REV. 113, 136 n.194 (2012).
6 Courts “have systemically rejected first amendment claims in copyright cases” because of
“limitations [that] include the doctrine of fair use, the dichotomy between idea and expression, and
the compulsory licensing scheme.” Henry S. Hoberman, Copyright and the First Amendment:
Freedom or Monopoly of Expression?, 14 PEPP. L. REV. 571, 571–72 (1987) (footnotes omitted).
7 Warhol, 143 S. Ct. at 1266.
8 Andy Warhol, ANDY WARHOL MUSEUM, https://www.warhol.org/andy-warhols-life [https://
perma.cc/5VLQ-5U4J].
9 Warhol, 143 S. Ct. at 1266.

410
2023] THE SUPREME COURT — LEADING CASES 411

of the first women to become a rock-and-roll photographer.10 For artists

such as Goldsmith and Warhol, the Constitution grants Congress the
powerful ability to secure for “Authors” the “exclusive Right to their
respective Writings” — all in order to “promote the Progress of Science
and useful Arts.”11 The Copyright Act of 197612 enshrines this right and
allows artists to stop the unlawful reproduction (or the creation of de-
rivative works) of their art.13 However, the doctrine of fair use allows
the “fair use” of a copyrighted work.14 Now codified in 17 U.S.C. § 107,
this equitable defense requires courts to consider four factors in deter-
mining whether a use is “fair,” the first of which evaluates “the purpose
and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes.”15
In 1981, Goldsmith “convinced Newsweek magazine to hire her to
photograph Prince Rogers Nelson, then an ‘up and coming’ and ‘hot
young musician.’”16 The magazine agreed, and Goldsmith photo-
graphed Prince in concert and in her studio.17 Then, in 1984, Goldsmith
licensed one of the Prince photographs to Vanity Fair for use as an “art-
ist reference.”18 The agreed-upon license required that the illustration
created from Goldsmith’s photograph would be used “one time full page
and one time under one quarter page.”19 Goldsmith’s agency made clear
that “[n]o other usage right [had been] granted.”20
Vanity Fair then hired Warhol to create the illustration from
Goldsmith’s reference photo.21 The violet-hued final piece was pub-
lished in an article titled “Purple Fame.”22 Unbeknownst to Goldsmith,
Warhol made a whole set of works from the reference photograph that
included thirteen silkscreen prints and two pencil drawings, collectively
referred to as the “Prince Series.”23 Goldsmith learned of the Prince
Series only in 2016 when, after Prince passed away,24 Condé Nast pub-
lished an orange — not purple — silkscreen portrait of Prince (“Orange

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
10 Bio & CV, LYNN GOLDSMITH, https://lynngoldsmith.com/wordpress/bio-cv [https://perma.
cc/7F65-FHWB].
11 U.S. CONST. art. I, § 8, cl. 8.
12 17 U.S.C. §§ 101–805.
13 See id. § 106.
14 Warhol, 143 S. Ct. at 1273.
15 17 U.S.C. § 107.
16 Warhol, 143 S. Ct. at 1266.
17 Id.
18 Id. at 1267.
19 Id.
20 Id.
21 Id.
22 See Tristan Vox, Purple Fame: An Appreciation of Prince at the Height of His Powers,
VANITY FAIR (Apr. 22, 2016), https://www.vanityfair.com/culture/2016/04/prince-at-the-height-of-
his-powers [https://perma.cc/E8UZ-HKKR].
23 Warhol, 143 S. Ct. at 1268.
24 See Legendary Musician and Megawatt Star Prince Dies at 57, HISTORY, https://www.
history.com/this-day-in-history/music-legend-prince-dies [https://perma.cc/56EV-Q57T].
412 HARVARD LAW REVIEW [Vol. 137:410

Prince”)25 on the cover of a “special edition magazine” celebrating the

iconic artist’s life.26
To obtain the Orange Prince, Condé Nast had previously contacted
AWF27 — which now owned copyrights in the Prince Series after
Warhol’s passing — “about the possibility of reusing the [Purple Fame]
image for a special edition magazine.”28 After AWF informed Condé
Nast about the rest of the Prince Series, the company elected to license
the Orange Prince instead.29 Following her discovery of the cover,
Goldsmith notified AWF of her belief that the licensing of the Orange
Prince to Condé Nast infringed her copyright.30 Following this contact,
AWF sued Goldsmith and her agency for “a declaratory judgment of
noninfringement or, in the alternative, fair use.”31
The district court granted summary judgment for AWF, declaring
that Warhol made a “fair use” of [Goldsmith’s] photograph[].32 Judge
Koeltl held that the Prince Series was a “transformative”33 use of the
reference photo because when viewed “side-by-side,”34 the works “have
a different character, give Goldsmith’s photograph a new expression,
and employ new aesthetics with creative and communicative results.”35
The Court of Appeals for the Second Circuit reversed and remanded,
finding that all four § 107 factors favored Goldsmith.36 Notably, Judge
Lynch defined a “transformative” use not as “any secondary work that
adds a new aesthetic or new expression to its source material,”37 but
instead, one that uses “its source material . . . in service of a ‘fundamen-
tally different and new’ artistic purpose and character.”38
AWF sought certiorari at the Supreme Court.39 On appeal, AWF
challenged only the analysis of the first § 107 factor.40 The Supreme
Court granted certiorari to determine whether “the purpose and charac-
ter” of Warhol’s use weighed in Goldsmith’s favor.41
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
25 See Orange Prince, 1985, WIKIART, https://www.wikiart.org/en/andy-warhol/orange-prince-
1984 [https://perma.cc/TTR9-DF3M].
26 Warhol, 143 S. Ct. at 1270.
27 See generally About, ANDY WARHOL FOUND. FOR VISUAL ARTS, https://warholfoundation.
org/about [https://perma.cc/5VXY-BYRX].
28 Warhol, 143 S. Ct. at 1269.
29 Id.
30 Id. at 1271.
31 Id.
32 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 382 F. Supp. 3d 312, 331 (S.D.N.Y.
2019).
33 Id. at 326.
34 Id. at 325 (quoting Cariou v. Prince, 714 F.3d 694, 707–08 (2d Cir. 2013)).
35 Id. at 326 (alterations in original) (quoting Cariou, 714 F.3d at 708).
36 Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 32 (2d Cir. 2021).
37 Id. at 38–39.
38 Id. at 42. Additionally, the Court of Appeals rejected AWF’s assertion that the Prince Series did
not infringe Goldsmith’s copyright because the works were not “substantially similar.” Id. at 52–54.
39 Warhol, 143 S. Ct. at 1272.
40 Id.
41 Id. at 1272–73 (quoting 17 U.S.C. § 107(1)).
2023] THE SUPREME COURT — LEADING CASES 413

Writing for the majority, Justice Sotomayor affirmed the Second

Circuit’s decision, stating that although “Warhol’s contribution to con-
temporary art is undeniable,”42 the alleged use was not “transformative”
because the work and AWF’s use “share substantially the same pur-
pose.”43 Using the seminal fair use case Campbell v. Acuff-Rose Music,
Inc.,44 Justice Sotomayor clarified two points of the first-factor analysis.
First, “the fact that a use is commercial as opposed to nonprofit is an
additional ‘element of the first factor’” that does not automatically ren-
der the use unfair.45 Second, “a use that has a distinct purpose is justi-
same purpose
fied because it furthers the goal of copyright, namely, to promote the
explained
progress of science and the arts, without diminishing the incentive to
create.”46 Justice Sotomayor noted that a “typical use of a celebrity pho-
tograph is to accompany stories about the celebrity, often in maga-
zines,”47 and such licenses “provide an economic incentive to create
original works, which is the goal of copyright.”48 Therefore, AWF’s
licensing possessed “substantially the same [purpose] as that of
Goldsmith’s photograph.”49 Thus, the first factor leaned in Goldsmith’s
favor.50
Next, Justice Sotomayor disagreed with AWF’s contention that the
Prince Series is transformative because it “has a new meaning or mes-
sage” as a “comment on celebrity.”51 While Campbell “did describe a
transformative use as one that ‘alter[s] the first [work] with new expres-
sion, meaning, or message,’” new meaning or expression is not sufficient
to render a work transformative; otherwise, the fair use defense would
“swallow the copyright owner’s exclusive right to prepare derivative
works.”52 Additionally, the “subjective intent of the user (or the subjec-
tive interpretation of a court) [does not] determine the purpose of the
use.”53 Instead, the “meaning of a secondary work” should be evaluated
only to ascertain “whether the purpose of the use is distinct from the
original, for instance, because the use comments on, criticizes, or pro-
vides otherwise unavailable information about the original.”54

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42 Id. at 1266.
43 Id. at 1287. The majority defined the challenged “use” in question as “AWF’s licensing of
Orange Prince to Condé Nast” and not the initial creation of the Prince Series. Id. at 1273.
44 510 U.S. 569 (1994).
45 Warhol, 143 S. Ct. at 1276 (quoting Campbell, 510 U.S. at 584).
46 Id. (citing, inter alia, Campbell, 510 U.S. at 579).
47 Id. at 1278.
48 Id.
49 Id.
50 Id. at 1273.
51 Id. at 1281–82.
52 Id. at 1282 (alterations in original) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
579 (1994)).
53 Id. at 1284.
54 Id. (citing Authors Guild v. Google, Inc., 804 F.3d 202, 215–16 (2d Cir. 2015)).
414 HARVARD LAW REVIEW [Vol. 137:410

Before concluding, Justice Sotomayor addressed the dissent’s con-

cerns that the majority’s holding will frustrate creativity — writing that
it “will not impoverish our world to require AWF to pay Goldsmith a
fraction of the proceeds from its reuse of her copyrighted work.”55
Additionally, “copyright law is replete with escape valves” like “the idea-
expression distinction . . . and, yes, the defense of fair use.”56
Justice Gorsuch concurred, writing that the “question before us is a
narrow one of statutory interpretation.”57 He agreed with the majority’s
view because “[n]othing in the copyright statute calls on judges to spec-
ulate about the purpose an artist may have in mind when working on a
particular project” or “requires judges to try their hand at art criticism
and assess the aesthetic character of the resulting work.”58 Therefore,
§ 107 does not instruct a judge to answer whether “Mr. Warhol’s image
seek[s] to depict Prince as a ‘larger-than-life’ icon while Ms. Goldsmith’s
photograph attempts to cast him in a more ‘vulnerable’ light” or
whether “the artistic purposes latent in the two images and their aes-
thetic character [are] actually more similar than that.”59
Dissenting from the majority, Justice Kagan proclaimed that “the
Court declares that Andy Warhol’s eye-popping silkscreen of Prince —
a work based on but dramatically altering an existing photograph — is
(in copyright lingo) not ‘transformative.’”60 She argued that this con-
clusion contradicted the Court’s own precedent that has “used Warhol
paintings as the perfect exemplar of a ‘copying use that adds something
new and important.’”61 Justice Kagan stated that the fact that consum-
ers, like Condé Nast, would value the aesthetic differences between the
two pieces demonstrates that “Warhol had effected a transformation.”62
“Nothing comes from nothing,” copied Justice Kagan from song-
writer Richard Rogers, and judicial precedent recognizes that “new art,
new invention, and new knowledge arise from existing works.”63 The
dissent asserted that the “differences in meaning that arose from replac-
ing a realistic — and indeed humanistic — depiction of the performer
with an unnatural, disembodied, masklike one” rendered the work
transformative.64 However, the “majority does not see it” and the dis-
sent observed that there “is precious little evidence in today’s opinion
that the majority has actually looked at these images, much less that it
has engaged with expert views of their aesthetics and meaning.”65 While
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
55 Id. at 1286.
56 Id. at 1287.
57 Id. at 1288 (Gorsuch, J., concurring).
58 Id. at 1289.
59 Id. at 1290 (quoting id. at 1271, 1284 (majority opinion)).
60 Id. at 1291 (Kagan, J., dissenting).
61 Id. at 1292 (quoting Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1202–03 (2021)).
62 Id. at 1297.
63 Id.
64 Id. at 1300.
65 Id. at 1301.
2023] THE SUPREME COURT — LEADING CASES 415

Justice Gorsuch explicitly eschewed inquiries into artistic meaning, the

majority “occasionally acknowledge[d] the balance that the fair use pro-
vision contemplates” but failed to apply it.66 The Court’s own “prece-
dent . . . conflicts with nearly all the majority says.”67 To prove that
copying is essential to a creative ecosystem, Justice Kagan proffered
quotations and anecdotes from artists who knew that “[c]reative pro-
gress unfolds through use and reuse, framing and reframing: [o]ne work
builds on what has gone before; and later works build on that one; and
so on through time.”68 Warhol is “the very embodiment of transforma-
tive copying.”69
Audience reactions to Warhol “are best described as uncertain.”70
Like the doctrine of fair use, defining what “is” or “isn’t” art — and
why — is a millennia-old problem yet to be solved.71 This fundamental
judgment regarding the definition of art constructs the gap between the
majority and dissent. How we define art determines how we see its
value, and a utilitarian72 judge’s perception of the value of a use shapes
whether or not the use is labeled “transformative.” Perhaps unknow-
ingly, the opinions of the Court utilized different theories of art philoso-
phy to justify their understanding of the Orange Prince’s transformative
value.73 Justice Kagan’s dissent resembled expressionism, while Justices
Sotomayor and Gorsuch exhibited a formalistic understanding of art.
Theories regarding the “role” of a judge likely drew the majority to a
formalistic understanding of art. However, by deflating the value of
added expression, the majority’s test frustrates the fair use doctrine’s

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
66 Id. at 1303.
67 Id. at 1304.
68 Id. at 1311.
69 Id.
70 Peter J. Karol, After Warhol: The Transformative Impact of Warhol v. Goldsmith, ARTFORUM
(June 5, 2023, 9:20 AM), https://www.artforum.com/slant/the-transformative-impact-of-warhol-v-
goldsmith-90667 [https://perma.cc/W7T8-75HV]. But see Amy Adler, The Supreme Court’s Warhol
Decision Just Changed the Future of Art, ART AM. (May 26, 2023, 10:47 AM), https://www.
artnews.com/art-in-america/columns/supreme-court-andy-warhol-decision-appropriation-artists-impact-
1234669718 [https://perma.cc/AT3Z-L99S] (writing that “the Court’s Warhol decision will signifi-
cantly limit the amount of borrowing from and building on previous works that artists can engage
in”). Many see the case as a rebuke of the Second Circuit’s infamous Cariou v. Prince, 714 F.3d
694 (2d Cir. 2013), in which artist Richard Prince’s appropriation works set the “high water mark”
of artistic fair use. Kyle Jahner, Warhol Fair Use Ruling Reframes Appropriation Art Legal Fights,
BLOOMBERG L. (May 30, 2023, 5:05 AM), https://news.bloomberglaw.com/ip-law/warhol-fair-use-
ruling-reframes-appropriation-art-legal-fights [https://perma.cc/JLR4-YGT6].
71 Plato wrote that “the painter, the tragedian, and the musician are imitators of an imitation,
twice removed from the truth.” Mimesis, BRITANNICA (Nov. 22, 2011), https://www.britannica.
com/art/mimesis [https://perma.cc/RLX2-Y97K].
72 “Intellectual property is fundamentally about incentives to invent and create.” Mark A.
Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 993
(1997).
73 Although the majority attempts to cabin its fair use analysis to AWF’s licensing to Condé
Nast, this distinction does not feel particularly convincing. See, e.g., Karol, supra note 70 (“If this
all feels a bit off to you, good. It should. It doesn’t track with art practice.”).
416 HARVARD LAW REVIEW [Vol. 137:410

ability to operate as a First Amendment escape valve that protects free

speech.
Alchemist-like, thinkers have spent careers attempting to distill def-
initions of art. What separates the “good” art from the “bad”?74 Why
do we react emotionally to certain compilations of shapes, words, colors,
and sounds?75 Art philosophers specialize in this difficult task. While
the art “critic says that a given work of music is expressive, . . . the phi-
losopher of art asks what is meant by saying that a work of art is ex-
pressive and how one determines whether it is.”76
Like art, the doctrine of fair use has confounded countless intellec-
tuals (and jurists).77 In Campbell, the Supreme Court embraced Judge
Leval’s formulation of fair use that appeared in his seminal article,
R
Toward a Fair Use Standard.78 Judge Leval believed that a fair use
“must be of a character that serves the copyright objective of stimulating
productive thought and public instruction without excessively diminish-
ing the incentives for creativity.”79 And, the thrust of that determination
“turn[ed] primarily on whether, and to what extent, the challenged use
is transformative.”80 Thus, the first factor of the fair use analysis essen-
tially boils down to a utilitarian evaluation of the defendant’s use.81
Justice Kagan’s opinion fielded an expressionistic understanding of
transformative use. The expressionist manifesto is that “art is expres-
sion.”82 Expressionists believe that “[i]nstead of reflecting states of the
external world, art is held to reflect the inner state of the artist.”83 Thus,
the expressionist critic focuses on the communicative aspects of art —
that is, what the audience can glean from the specific messages conveyed
by the artist through their medium. Justice Kagan emphasized that the
Prince Series is “a transformation”84 not only because of aesthetic differ-
ences, but also because Warhol’s physical alterations amount to “an

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
74 See generally Thomas Adajian, The Definition of Art, STAN. ENCYCLOPEDIA OF PHIL.
(Aug. 14, 2018), https://plato.stanford.edu/archives/spr2022/entries/art-definition [https://perma.cc/
J5DV-JFBR].
75 See generally Jaspal Riyait & Melissa Kirsch, How We Respond to Art, N.Y. TIMES (Feb. 18,
2021), https://www.nytimes.com/2021/02/18/at-home/how-we-respond-to-art.html [https://perma.cc/
6BFH-JPLP].
76 John Hospers, Philosophy of Art, BRITANNICA (Oct. 4, 2022), https://www.britannica.com/
topic/philosophy-of-art [https://perma.cc/E9EB-AMC7].
77 See Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105, 1105 (1990).
78 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citing Leval, supra note 77, at
1111).
79 Leval, supra note 77, at 1110.
80 Id. at 1111.
81 Professor Rebecca Tushnet argues that the “transformation” framework means that “non-
transformative copying, including plain old photocopying even in educational or scientific contexts,
begins to look unfair.” Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free
Speech and How Copying Serves It, 114 YALE L.J. 535, 556 (2004).
82 Hospers, supra note 76.
83 Id.
84 Warhol, 143 S. Ct. at 1296 (Kagan, J., dissenting).
2023] THE SUPREME COURT — LEADING CASES 417

undisputed change in meaning.”85 Justice Kagan described Goldsmith’s

photo as conveying “corporeality and luminosity” with a focus on
“Prince’s ‘unique human identity,’”86 while Warhol’s works portrayed
Prince as “spectral, dark, [and] uncanny — less a real person than a
‘mask-like simulacrum.’”87 The Prince Series is transformative because
Warhol “manifested, in short, the dehumanizing culture of celebrity in
America.”88 Justice Kagan valued the pieces because of their emotive
expression and the specific (but subjective) messages that can be per-
ceived by the onlooker — the same reasons that an expressionist would
be drawn to the works.
In contrast, both Justices Sotomayor’s and Gorsuch’s analyses re-
semble the theory of formalism. Formalism “describes the critical posi-
tion that the most important aspect of a work of art is its form — the
way it is made and its purely visual aspects — rather than its narrative
content or its relationship to the visible world.”89 In visual art, “a
formalistic critic would focus exclusively on the qualities of colour,
brushwork, form, line and composition.”90 Formalists reject external
considerations in the appreciation of art, believing that, otherwise, “they
would find their attention drawn away from the sublimities of art to the
more approachable concerns of humanity.”91 Like the formalists, Justice
Sotomayor distrusted subjective interpretations of a piece as a method
of understanding its value, writing “[a] subject as open to interpretation
as the human face, for example, reasonably can be perceived as convey-
ing several possible meanings.”92 Through the majority’s eyes, the
Orange Prince merely “crops, flattens, traces, and colors the photo but
otherwise does not alter it.”93 By focusing solely on the objective ele-
ments of Warhol’s work, the majority embodies formalist values in its
analysis.
When an artist makes minimal alterations to a work that are alleged
to give rise to significant changes in meaning (such as appropriation
art94), it is understandable that formalists and expressionists would

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 Id.
86 Id. (quoting Joint Appendix, Volume I at 176, 227, Warhol, 143 S. Ct. 1258 (No. 21-869)).
87 Id. (quoting Joint Appendix, Volume I, supra note 86, at 187, 249).
88 Id.
89 Formalism, TATE, https://www.tate.org.uk/art/art-terms/f/formalism [https://perma.cc/3CRC-
MBWV].
90 Id.
91 Hospers, supra note 76.
92 Warhol, 143 S. Ct. at 1285.
93 Id. at 1270.
94 “Appropriation in art and art history refers to the practice of artists using pre-existing objects
or images in their art with little transformation of the original.” Appropriation, TATE, https://www.
tate.org.uk/art/art-terms/a/appropriation [https://perma.cc/NZ2L-X8LR].
418 HARVARD LAW REVIEW [Vol. 137:410

disagree about the transformative nature of the second work.95 The ap-
peal of formalism to the majority makes instinctual sense as it parallels
impulses of modern theories of statutory and constitutional interpreta-
tion, and, perhaps, makes sense of a copyright law that extends protec-
tion to less “expressive” works such as software code.96 Fascinatingly,
there is perhaps a direct line between formalist theories of poetry criti-
cism and Justice Scalia’s development of textualism.97 Much of Justice
Scalia’s “theory of adjudication built on what he took to be a constitu-
tionally warranted view of judicial restraint” and this “anti-discretion”
principle “accounts for a surprisingly large element of his textualism and
originalism.”98 Like Justice Scalia and the formalists, the majority and
concurrence felt that incorporating subjective judgments, such as emo-
tional reactions to artistic works, is not the role of the judge.
Although the Copyright Act of 1976 might not ask judges to be-
come art critics,99 the First Amendment might require it. Although
“[c]opyright has always posed a potential conflict with the First
Amendment,”100 doctrines like fair use are intended to operate as escape
valves that curb a copyright holder’s power to suppress the speech of
others.101 Warhol, however, limits fair use (in scenarios of added expres-
sion) to instances where “the use comments on, criticizes, or provides
otherwise unavailable information about the original.”102 But the First
Amendment protects more than just talismanic categories of criticism

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
95 This conflict was most apparent when the majority took aim at Justice Kagan’s proposed
“magazine editor” test, stating that it “does not have much of a future in fair use doctrine.” Warhol,
143 S. Ct. at 1278 n.11. On the majority’s telling, the “flaw” of the test is that “[i]f all that mattered
under the first factor [of fair use was] whether a buyer was ‘drawn aesthetically’ to a secondary
work (instead of the pre-existing work it adapted) or whether the buyer preferred ‘to convey the
message of’ the secondary work, . . . then every derivative work would qualify.” Id. (quoting id. at
1297 (Kagan, J., dissenting)). Utilizing an all-too-familiar reductio ad absurdum argument, the
majority renounced subjective reactions as a trustworthy basis for forming (or dissolving) legal
liability.
96 Certain copyright doctrines, such as tests for “substantial similarity,” already instruct judges
to distill a visual work into its physical elements and disregard preconceived notions regarding the
author’s intent or audience perception. See, e.g., Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118
(9th Cir. 2018).
97 Justice Scalia’s father, Professor Salvatore Eugene Scalia, produced scholarship on Italian
poetry and was influenced by the writings of the New Critics, a group advocating a formalist ap-
proach to critiquing poems. See generally Note, Textualism’s Mistake, 135 HARV. L. REV. 890 (2022).
98 John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 MICH. L. REV. 747,
748–50 (2017).
99 See Warhol, 143 S. Ct. at 1289 (Gorsuch, J., concurring).
100 Tushnet, supra note 81, at 540.
101 See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003). In Eldred v. Ashcroft, the Supreme Court
affirmed fair use’s First Amendment aims, writing that the defense “allows the public to use not
only facts and ideas contained in a copyrighted work, but also expression itself in certain circum-
stances.” Id. at 219.
102 Warhol, 143 S. Ct. at 1284.
2023] THE SUPREME COURT — LEADING CASES 419

or parody;103 it protects freedom of expression and, in fact, abhors

content-based limitations on speech that privilege certain topics over
others.104 Warhol’s approach encourages judges to ignore “subjective
interpretation[s]” of a use.105 This command is in tension with the First
Amendment, which protects speech — subjective or not.106 In other
First Amendment realms, such as challenges to laws regulating expres-
sive conduct, courts explicitly consider the message perceived by the
audience.107 However, now, jurists might be tempted to ignore nuances
of expression when considering whether an alleged infringement consti-
tutes a fair use and dismiss the value of art that is frequently sought by
the public.108 This move sterilizes artistic fair uses, putting art on the
same footing as computer software.109 As Justice Kagan’s dissent
demonstrates, artists build upon one another to generate valuable new
works not by criticizing or parodying the works of the forebearers, but
by paying homage and “framing and reframing.”110
Art is subjective — some might say, that’s the whole darn point.111
Art, and life, is composed of both subjective and objective elements.112
By shuttering one’s eyes to subjectivity in a desire to constrain the judi-
cial role, one shutters their eyes from reality and arrives at legal
conclusions unprepared for the contours of humanity. And, without a
transformative-use analysis that grapples with the gooey complexities of
subjective artistic expression, the fair use defense’s First Amendment
aims are weakened. Whether or not AWF’s licensing of the Orange
Prince to Condé Nast constitutes a fair use of Goldsmith’s photograph,
the art world is at a loss when creatives can no longer reliably point to
added communicative expression as a method of establishing fair use.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
103 The Court’s recognition of “parody” and “criticism” betrays the inherent unworkability of a
formalist understanding of transformative use. The majority suggests that Warhol’s Soup Cans are
fair uses because “the Soup Cans series uses Campbell’s copyrighted work for an artistic commen-
tary on consumerism, a purpose that is orthogonal to advertising soup.” Id. at 1281. But determin-
ing the meaning of the Soup Can series requires the same sort of “art criticism” foresworn by Justice
Gorsuch. See id. at 1289 (Gorsuch, J., concurring).
104 See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 159 (2015).
105 Warhol, 143 S. Ct. at 1284.
106 Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 YALE L.J. 1,
39 (2002).
107 See Texas v. Johnson, 491 U.S. 397, 404 (1989).
108 See Chiara Bastoni, Value in Art — What Makes Art Valuable?, ARTLAND MAG., https://
magazine.artland.com/value-art [https://perma.cc/M4UU-6TL5] (“Another relevant element of art
value is societal meaning.”).
109 See, e.g., Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1197–98 (2021).
110 Warhol, 143 S. Ct. at 1311 (Kagan, J., dissenting).
111 “Art is the uniting of the subjective with the objective, of nature with reason, of the uncon-
scious with the conscious, and therefore art is the highest means of knowledge.” LEO TOLSTOY,
WHAT IS ART? 27 (Aylmer Maude trans., London, Walter Scott, Ltd. 1899).
112 See A.H. Hannay, Is Art Subjective?, 48 PROC. ARISTOTELIAN SOC’Y 29, 30 (1948) (“The
question that is so often and so easily asked, ‘How then are we to know who is right and who is
wrong?’, is not a question that can only be asked about matters of taste. It can be asked about any
kind of judgment, scientific and historical as well as ethical and aesthetic.”).