Last week, the Supreme Court issued a long-awaited copyright fair use decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. In short, the Supreme Court looked at whether it was fair use under the copyright law for the Andy Warhol Foundation to license a print (known as Orange Prince) to Condé Nast when such print was based on a 1981 photo that photographer Lynn Goldsmith took of Prince in 1981. The 7-2 decision, featuring extremely sharp and contrasting views from common allies, Justice Sotomayor in the majority and Justice Kagan in the dissent, illustrates the complexities and murkiness of copyright fair use precedent. In the end, the majority held that Warhol’s Orange Prince did not constitute fair use of Goldsmith’s copyrighted photograph of Prince, based upon “the purpose and character of the use,” which is the first factor in the four-factor fair use test.
In sum, the fair use defense is a defense to a copyright infringement claim. There are four factors courts must consider, and each of the four need not be given equal weight, something that can make analyzing risk challenging. For years, relying on a fair use defense has been and, after this recent decision, will continue to be, very risky, and likely even more so than in the past. The factors are: