Page:Andy Warhol Foundation v. Goldsmith.pdf/17

This page has been proofread, but needs to be validated.

Cite as: 598 U. S. ____ (2023)

11

Opinion of the Court

which the Court of Appeals believed would “create a celebrity-plagiarist privilege.” Id., at 43; see also ibid. (“[T]he fact that Martin Scorsese’s recent film The Irishman is recognizably ‘a Scorsese’ does not absolve him of the obligation to license the original book” (some internal quotation marks and alterations omitted)).

On the other three factors, the Court of Appeals found that the creative and unpublished nature of Goldsmith’s photograph favored her, id., at 45; that the amount and substantiality of the portion taken (here, “the ‘essence’ ” of the photograph) was not reasonable in relation to the purpose of the use, id., at 45–47; and that AWF’s commercial licensing encroached on Goldsmith’s protected market to license her photograph “to publications for editorial purposes and to other artists to create derivative works,” id., at 48–51.^[1] The court noted that there was “no material dispute that both Goldsmith and AWF have sought to license (and indeed have successfully licensed) their respective depictions of Prince to popular print magazines to accompany articles about him.” Id., at 49 (footnote omitted).

Finally, although the District Court had not reached the issue, the Court of Appeals rejected AWF’s argument that the Prince Series works were not substantially similar to Goldsmith’s photograph. See id., at 52–54.

Judge Jacobs concurred. He stressed that the Court of Appeals’ holding “d[id] not consider, let alone decide, whether the infringement here encumbers the original Prince Series works.” Id., at 54. Instead, “the only use at

↑ The Court of Appeals considered not only the possibility of market harm caused by the actions of AWF but also “whether ‘unrestricted and widespread conduct of the sort engaged in by [AWF] would result in a substantially adverse impact on the potential market’ ” for the photograph, including the market for derivative works. 11 F. 4th 26, 49–50 (CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 590 (1994)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 568 (1985).

[1] The Court of Appeals considered not only the possibility of market harm caused by the actions of AWF but also “whether ‘unrestricted and widespread conduct of the sort engaged in by [AWF] would result in a substantially adverse impact on the potential market’ ” for the photograph, including the market for derivative works. 11 F. 4th 26, 49–50 (CA2 2021) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 590 (1994)); see also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 568 (1985).

[1]