Page:Andy Warhol Foundation v. Goldsmith.pdf/40

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ANDY WARHOL FOUNDATION FOR VISUAL ARTS, INC. v. GOLDSMITH

Opinion of the Court

AWF asserts another, albeit related, purpose, which is to comment on the “dehumanizing nature” and “effects” of celebrity. Brief for Petitioner 44, 51. No doubt, many of Warhol’s works, and particularly his uses of repeated images, can be perceived as depicting celebrities as commodities. But again, even if such commentary is perceptible on the cover of Condé Nast’s tribute to “Prince Rogers Nelson, 1958–2016,” on the occasion of the man’s death, AWF has a problem: The asserted commentary is at Campbell’s lowest ebb. Because it “has no critical bearing on” Goldsmith’s photograph,^[1] the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).” 510 U. S., at 580.^[2] The commercial nature of the use, on the other hand, “loom[s] larger.” Ibid.

↑ At no point in this litigation has AWF maintained that any of the Prince Series works, let alone Orange Prince on the cover of the 2016 Condé Nast special edition, comment on, criticize, or otherwise target Goldsmith’s photograph. That makes sense, given that the photograph was unpublished when Goldsmith licensed it to Vanity Fair, and that neither Warhol nor Vanity Fair selected the photograph, which was instead provided by Goldsmith’s agency.
↑ The dissent wonders: Why does targeting matter? See post, at 24 (opinion of Kagan, J.). The reason, as this opinion explains, is the first factor’s attention to justification. Supra, at 17–20, and nn. 7–8, 29–30, and n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at ___ (slip op., at 26)). Compare, for example, a film adaptation of Gone With the Wind with a novel, The Wind Done Gone, that “inverts” the original’s “portrait of race relations” to expose its “romantic, idealized” portrayal of the antebellum South. SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257, 1270 (CA11 2001); id., at 1280 (Marcus, J., specially concurring). Or, to build from one of the artistic works the dissent chooses to feature, consider a secondary use that borrows from Manet’s Olympia to shed light on the original’s depiction of race and sex. See R. Storr & C. Armstrong, Lunch With Olympia (2016). Although targeting is not always required, fair use is an affirmative defense, and AWF bears the burden to justify its taking of Goldsmith’s work with some reason other than, “I can make it better.”

[1] At no point in this litigation has AWF maintained that any of the Prince Series works, let alone Orange Prince on the cover of the 2016 Condé Nast special edition, comment on, criticize, or otherwise target Goldsmith’s photograph. That makes sense, given that the photograph was unpublished when Goldsmith licensed it to Vanity Fair, and that neither Warhol nor Vanity Fair selected the photograph, which was instead provided by Goldsmith’s agency.

[2] The dissent wonders: Why does targeting matter? See post, at 24 (opinion of Kagan, J.). The reason, as this opinion explains, is the first factor’s attention to justification. Supra, at 17–20, and nn. 7–8, 29–30, and n. 18 (citing Campbell, 510 U. S., at 580–581; Google, 593 U. S., at ___ (slip op., at 26)). Compare, for example, a film adaptation of Gone With the Wind with a novel, The Wind Done Gone, that “inverts” the original’s “portrait of race relations” to expose its “romantic, idealized” portrayal of the antebellum South. SunTrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257, 1270 (CA11 2001); id., at 1280 (Marcus, J., specially concurring). Or, to build from one of the artistic works the dissent chooses to feature, consider a secondary use that borrows from Manet’s Olympia to shed light on the original’s depiction of race and sex. See R. Storr & C. Armstrong, Lunch With Olympia (2016). Although targeting is not always required, fair use is an affirmative defense, and AWF bears the burden to justify its taking of Goldsmith’s work with some reason other than, “I can make it better.”

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