Did the Solicitor General Hijack the Warhol v. Goldsmith Case?

The main dispute between Lynn Goldsmith and the Andy Warhol Foundation (AWF) between 2017 and 2022 was whether Warhol’s 1984 creation of sixteen works of visual art based on Goldsmith’s photograph of Prince under an artist reference license was fair use or infringement. Even though the trial court and the Second Circuit disagreed about whether these creations were fair use, the Court did not address that dispute at all because it interpreted Goldsmith’s merits brief as having abandoned that claim. This Article considers the influence of the Office of the Solicitor General (OSG)’s brief on the reframing of the Warhol case as only concerning the transformativeness (or not) of a 2016 license granted by the AWF to Condé Nast to the use of one of Warhol’s Prince Series works on the cover of a commemorative magazine. After reviewing the evolution of this copyright litigation and the lower court decisions, this Article speculates about how and why OSG may have chosen to narrow the question presented in the Warhol case and why Goldsmith might have acquiesced in this. The OSG’s reframing of the issue enabled the Court to avoid addressing a largely invisible issue in the Warhol case: the implications of § 103(a) of the 1976 Copyright Act for AWF’s claims of copyright in Warhol’s Prince Series works. Even though the Court only ruled that AWF’s 2016 license grant was nontransformative, the Article suggests that much of the Warhol decision’s dicta is nonetheless likely to influence future fair use analyses. It also considers the viability of AWF’s claim of copyright in the Prince Series and suggests alternative ways the Court could have resolved the Warhol case.