In 1984 Andy Warhol drew on a photographic portrait of Prince, taken by Lynn Goldsmith, to create the Prince series. Thirty-two years later, after the musician’s death, the foundation that manages Warhol’s legacy licensed Condé Nast to use one of those works, Orange Prince, on the cover of a commemorative publication. It was paid ten thousand dollars. Goldsmith received neither payment nor credit. The case reached the Supreme Court of the United States, which ruled against the foundation on 18 May 2023 by seven votes to two.
The court did not hold that Warhol plagiarised Goldsmith, nor that the Prince series was illegal. The judgment states in writing that it expresses no opinion on the creation, display or sale of any of the original works in the series. What was examined was a single use: that 2016 licence. Not even the whole analysis of that use. In the United States, using someone else’s work may be protected by fair use, which is assessed through four factors; only the first reached the Supreme Court: the purpose and character of the use.
On that factor, the ruling did two things. The first was to reduce the weight of ‘transformativeness’. A widespread reading of transformative use gave great weight to whether the new work added a meaning or message of its own. The majority opinion, written by Justice Sonia Sotomayor, held that new meaning can be relevant but is not decisive on its own. If it were, any adaptation, sequel or arrangement that adds something new would be free to use, and the author’s right to authorise derivative works would be hollowed out.
The second was to shift the question from the work to the use. The court accepted, for the sake of argument, that Orange Prince could portray Prince as an icon while Goldsmith’s photograph showed him as more fragile. But in 2016 the two images were doing the same thing: both were portraits of Prince used in magazines to illustrate stories about Prince. When the original work and the later use share the same or highly similar purposes, and the use is commercial, the first factor tends to weigh against fair use unless there is some other justification for copying. Commerciality carries weight but does not decide on its own; what decides is its combination with how close the two functions are.
The same copy may be lawful when used for one purpose and not when used for another. Orange Prince on a museum wall, studied in a classroom, reproduced in an art history book, or licensed to illustrate a cover about Prince himself are the same image and may represent four distinct legal situations. The court does not ask what the work is, but rather what is being done with it.
For those who paint, the idea has something unsettling about it and something fair. Unsettling because the same image, without a single pixel changed, can go from lawful to unlawful depending on the contract that comes with it. Fair because Goldsmith’s injury did not lie in Warhol having looked at her photograph, but in the fact that in 2016 Warhol’s work occupied exactly the commercial place her photograph would have occupied: a cover about Prince. I hear in this an echo of something I have argued on other ground: what a work does depends on its relationship with a context and not only on its properties. But the parallel has a clear limit: the court is not talking about what a work of art is; it is talking about which use of someone else’s work is permitted.
European law asks the question differently. In ‘Perceptiblemente diferente’ (Perceptibly different) I wrote about the ruling by the German Federal Court of Justice which, in September 2026, accepted as pastiche the sampling of Kraftwerk in a song by Sabrina Setlur. There the question was not the purpose of a specific use weighed through four factors. It was whether the recognisable reuse of protected material, with perceptible differences, enters into an artistic dialogue with the earlier work that can objectively be classed as pastiche. The United States looks above all at the function of the use and its commercial proximity to the original; European pastiche looks above all at the creative relationship between the works. The comparison is mine; neither court makes it, and it gives no basis for guessing what would have happened to Orange Prince in Germany or to the Kraftwerk sample in the United States.
Nothing in the judgment affects the Prince series as a work. What was decided was a 2016 licence, and the lesson it leaves is more modest, and more useful, than the headlines that chased it: in this body of law, an image is not lawful or unlawful once and for all. It becomes one or the other each time someone decides what to use it for.
On the open conversation
This text reviews the United States Supreme Court judgment in Andy Warhol Foundation v. Goldsmith (18 May 2023). I do not claim that Warhol plagiarised Goldsmith or that the Prince series is unlawful: the court examined only the first fair use factor in relation to the commercial licence of Orange Prince granted to Condé Nast in 2016, and expressly stated that it was not ruling on the creation, display or sale of the original works. What interests me is its method: judging specific uses rather than works, so that the same image can be lawful for one purpose and not for another. The comparison with pastiche in German and European law is systematic and my own, not any court’s. If anyone wishes to weigh in from copyright law or artistic practice, this notebook remains open.
Sources
Supreme Court of the United States, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869, 598 U.S. 508, 18 May 2023 (official text and United States Reports edition).
Bundesgerichtshof, judgment I ZR 74/22 (Metall auf Metall VI), 3 September 2026, cited for contrast; discussed in ‘Perceptiblemente diferente’.
Notes
Vote: 7–2. Majority opinion by Justice Sotomayor; concurrence by Justice Gorsuch, joined by Justice Jackson; dissent by Justice Kagan, joined by Chief Justice Roberts.
The question before the court was limited to the first fair use factor (17 U.S.C. § 107(1)) and the 2016 licence. The judgment states that it does not rule on the creation, display or sale of the original works in the Prince series.
The comparison with pastiche (§ 51a UrhG; Art. 5(3)(k) of Directive 2001/29/EC, as interpreted by the CJEU in Case C-590/23) is the author’s own systematic comparison, not one made by either court.