No.

21-869

In the
Supreme Court of the United States
__________________

ANDY WARHOL FOUNDATION FOR THE

VISUAL ARTS, INC.,
Petitioner,
v.

LYNN GOLDSMITH, ET AL.,

Respondents.
__________________
On Writ of Certiorari to the United States Court of
Appeals for the Second Circuit
__________________
BRIEF OF AMICUS CURIAE THE COMMITTEE FOR
JUSTICE IN SUPPORT OF RESPONDENTS
__________________

CURT LEVEY JOHN M. REEVES

THE COMMITTEE FOR JUSTICE Counsel of Record
3033 Wilson Blvd. REEVES LAW LLC
Suite 729 7733 Forsyth Blvd.
Arlington, VA 22201
Suite 1100--#1192
(202) 270-7748
St. Louis, MO 63105
(314) 775-6985
[email protected]

Counsel for Amicus Curiae

August 15, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . ii
INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The fair use doctrine must be interpreted in a
manner that upholds the Copyright Clause’s
textual empowering of Congress to protect
the fundamental civil right to the fruit of one’s
labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Copyright Clause codifies the founding-
era understanding of copyright law . . . . . . . . 3
B. The fair use doctrine has always been
interpreted to uphold the fundamental civil
right to the fruits of one’s labors. . . . . . . . . . 10
II. Holding Warhol’s work at issue here to be
“transformative” would expand the fair use
doctrine beyond anything previously known and
effectively negate copyright’s ability to protect
the fundamental civil right to the fruits of one’s
labors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
 ii

TABLE OF AUTHORITIES
CASES
Bohn v. Bogue,
(1846) 10 Jurist 420 . . . . . . . . . . . . . . . . . . . . . . 13
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994). . . . . . . . . . . . . . . . . . . . 16, 17
Daly v. Palmer,
6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) . . . . . . . . . . 13
District of Columbia v. Heller,
554 U.S. 570 (2008). . . . . . . . . . . . . . . . . . . . . . 4, 5
Eldred v. Ashcroft,
537 U.S. 186 (2003). . . . . . . . . . . . . . . . . . 3, 4, 6, 9
Emerson v. Davies,
8 F. Cas. 615 (C.C.D. Mass. 1865) . . . . . . . . . . . 13
Falk v. Donaldson,
57 F. 32 (C.C.S.D.N.Y. 1893) . . . . . . . . . . . . . . . 14
Folsom v. Marsh,
9 F. Cas. 342 (C.C.D. Mass.
1841) . . . . . . . . . . . . . . . . . . . . . 10, 11, 12, 13, 14
Lawrence v. Dana,
15 F. Cas. 26 (C.C.D. Mass. 1869) . . . . . . . . 13, 18
Lewis v. Fullarton,
(1839) 48 Eng. Rep. 1080 . . . . . . . . . . . . 10, 11, 17
Nichols v. Universal Pictures Corp.,
45 F.2d 119 (2d Cir. 1930) . . . . . . . . . . . . . . . . . 15
 iii

Robertson v. Baldwin,
165 U.S. 275 (1897). . . . . . . . . . . . . . . . . . . . . . . . 4
Roworth v. Wilkes,
(1807) 170 Eng. Rep. 889 . . . . . . . . . . . . . . . . . . 15
Sony Corp. v. Universal City Studios, Inc.,
464 U.S. 417 (1984). . . . . . . . . . . . . . . . . . . . . . . . 9
Sweet v. Benning,
(1855) 139 Eng. Rep. 838 . . . . . . . . . . . . . . . . . . 13
Wheaton v. Peters,
33 U.S. 591 (1834). . . . . . . . . . . . . . . . . . . . . 3, 8, 9
Wiren v. Shubert Theatre Corp.,
5 F. Supp. 358 (S.D.N.Y. 1933), aff’d
70 F.2d 1023 (2d Cir. 1934) . . . . . . . . . . . . . . . . 15
CONSTITUTION
U.S. Const. art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . 4
OTHER AUTHORITIES
William Blackstone, 2 Commentaries on the Laws of
England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
James Kent, 2 Commentaries on American Law
(6th ed. 1848) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
John Locke, Two Treatises of Government
(New Edition 1821) . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
Randolph J. May & Seth L. Cooper, The
Constitutional Foundations of Intellectual
Property (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
 iv

Adam Mossoff, Who Cares What Thomas Jefferson

Thought About Patents?, 92 Cornell L. Rev. 953
(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) . . . . . 4, 5
Joseph Story, A Familiar Exposition of the
Constitution of the United States (1842) . . . . . . . 6
The Federalist No. 43 (Modern Library ed.
2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
 1

INTEREST OF AMICUS CURIAE1

The Committee for Justice (“CFJ”) is a non-profit
legal and policy organization founded in 2002. It is
dedicated to promoting the rule of law and preserving
the Constitution’s protection of individual liberty,
including the fundamental civil right to the fruits of
one’s own labor. CFJ believes that the Constitution’s
protection of intellectual property and physical
property has helped to make the United States the
most prosperous society in the history of the world.
Consistent with this mission, CFJ files amicus
curiae briefs in key cases, supports constitutionalist
nominees to the federal judiciary, and educates the
American public and policymakers about the benefits
of individual liberty and the proper roles of our federal
courts and administrative agencies.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
Copyright protections serve to vindicate the
fundamental civil right that authors have to the fruits
of their labors. This is how the Founders understood it
at the time they enacted the Constitution with its
Copyright Clause, and this is how this Court has
understood it ever since. Yet the Andy Warhol

1
In accordance with Supreme Court Rule 37.3, all parties
consented to the filing of this brief. No counsel for a party has
authored this brief in whole or in part. No person aside from
amicus curiae has made a monetary contribution to fund this
brief’s preparation or submission.
 2

Foundation for the Visual Arts (“the Warhol

Foundation”) wants to change this accepted
understanding of the Copyright Clause by replacing it
with a utilitarian-based regime that would fail to
uphold an author’s rights to the extent that doing so
would stifle creativity. While the fair use doctrine is an
affirmative defense to copyright infringement, the
Warhol Foundation is proposing an interpretation of it
that is as unprecedented as it is radical. The Warhol
Foundation asks this Court to hold that anytime an
author reproduces someone else’s original work in its
entirety, but superimposes his own subjective
interpretation upon it, the new work is transformative
under the fair use doctrine. But neither the text of the
Copyright Clause, nor the history of copyright law, nor
this Court’s precedent can support such a reading. This
Court should reject such a radical interpretation of the
fair use doctrine and affirm the Second Circuit’s
conclusion that Warhol’s Prince Series infringed on
Goldsmith’s right to the fruits of her labor in creating
her photograph of Prince.
 3

ARGUMENT
I. The fair use doctrine must be interpreted in a
manner that upholds the Copyright Clause’s
textual empowering of Congress to protect the
fundamental civil right to the fruit of one’s
labor.
A. The Copyright Clause codifies the
founding-era understanding of copyright
law.
In arguing for an expansion of the fair use doctrine
that would encompass as “transformative” any work its
author subjectively believes to convey a meaning
different from that of the original work, the Warhol
Foundation fundamentally misconstrues the Copyright
Clause as being a utilitarian, pragmatic instrument
that does nothing other than advance the arts and
sciences. On the contrary, the Clause’s text as
understood at the time of the Constitution’s enactment
empowers Congress to protect an individual’s
fundamental civil right to the fruits of his or her labor.
See Wheaton v. Peters, 33 U.S. 591, 658 (1834) (“That
every man is entitled to the fruits of his own labour
must be admitted[.]”). Certainly, protecting such a
fundamental civil right can serve the purpose of
furthering the arts and sciences, but this Court has
warned against interpreting the Clause’s purpose in a
manner that would minimize or eliminate the
fundamental right it empowers Congress to protect. See
Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003).
Consequently, this Court should reject any
interpretation of the Clause that would undermine its
 4

protection of this fundamental civil right—especially

the Warhol Foundation’s utilitarian interpretation.
1. In interpreting a legal text, a court should give
its words their plain and ordinary meaning as they
were understood at the time of the text’s enactment.
See, e.g., District of Columbia v. Heller, 554 U.S. 570,
627 (2008) (applying this textualist approach to the
Second Amendment); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts
§§ 2, 6–7 (2012). Here, “text, history, and precedent”
confirm that the Copyright Clause empowers Congress
to protect a fundamental civil right “inherited from our
English ancestors.” See Eldred, 537 U.S. at 199; Heller,
554 U.S. at 599 (quoting Robertson v. Baldwin, 165
U.S. 275, 281 (1897)). The Clause declares that
Congress has the power “[t]o promote the progress of
science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their
respective writings and discoveries.” U.S. Const. art. I,
§ 8. It thus has two parts—an operative section
empowering Congress to protect a substantive right,
and a prefatory section explaining the purpose behind
empowering Congress to protect that right. It could be
rewritten to say: “Because it is important to promote
the progress of science and useful arts, Congress shall
have the power to secure for limited times to authors
and inventors the exclusive right to their respective
writings and discoveries.” See, e.g., Heller, 554 U.S. at
577 (applying similar rephrasing to the Second
Amendment’s prefatory and operative clauses).
The Clause’s prefatory section, however, cannot
limit the scope of its operative section empowering
 5

Congress to protect the right to intellectual property.

At most, the preface clarifies any ambiguity in the
operative section. See id. at 577–78 (“Logic demands
that there be a link between the stated purpose and
command . . . . But apart from [a] clarifying function, a
prefatory clause does not limit or expand the scope of
the operative clause.”); Scalia & Garner, supra, at § 2,
56–57 (“[P]urpose . . . cannot be used to contradict text
or to supplement it.”). The Clause plainly empowers
Congress to protect a substantive right individuals
have, as opposed to empowering Congress to create a
pragmatic, utilitarian privilege for individuals.
2. As to the nature of the “right” referenced in the
Copyright Clause, the Founders were unanimous in
understanding it to be a fundamental civil right to the
fruits of one’s labor, deriving from a property right
under natural law. John Locke, for example, wrote that
“every man has a property in his own person,” and that
“[t]he labour of his body, and the work of his
hands . . . are properly his.” John Locke, Two Treatises
of Government, § 27, 209 (New Edition 1821). Similarly,
William Blackstone wrote in support of the right
“which an author may be supposed to have in his own
original literary compositions: so that no other person
without his leave may publish or make profit of the
copies.” William Blackstone, 2 Commentaries on the
Laws of England *405. According to Blackstone,
“[w]hen a man by the exertion of his rational powers
has produced an original work, he seems to have
clearly a right to dispose of that identical work as he
pleases, and any attempt to vary the disposition he has
made of it, appears to be an invasion of that right.” Id.
at *405–06. This position is a far cry from the
 6

utilitarian, pragmatic approach to copyright law that

the Warhol Foundation advances.
James Madison similarly viewed the Copyright
Clause as empowering Congress to protect an author’s
right to the fruits of his or her labor, even if the Clause
has the stated purpose of furthering the arts and
sciences. Madison’s comments on this Clause in The
Federalist are mainly focused on the practical
advantages of the Clause for the public at large. See
The Federalist No. 43, at 274 (Modern Library ed.
2001) (“The utility of this power will scarcely be
questioned.”). Yet he also took pains to emphasize that
“[t]he public good fully coincides . . . with the claims of
individuals.” Id. In other words, Madison viewed no
opposition between the Clause having the stated
purpose of furthering the arts and sciences while at the
same time empowering Congress to protect
fundamental property rights of individuals. This Court
has recognized such an interpretation of Madison’s
writings, rejecting the argument that copyright law
must serve exclusively public, as opposed to private,
goals. See Eldred, 537 U.S. at 212, n.18.
Madison’s view accords with those of Joseph Story
and James Kent—two of the most important jurists
during the early years of our republic. In writing about
why it was important to empower the federal
government to enforce copyright law, Story left no
doubt to his readers that he viewed it as protecting an
author’s property right. See Joseph Story, A Familiar
Exposition of the Constitution of the United States 118
(1842) (“[I]f authors . . . are to have any real property
or interest in their writings . . . it is manifest, that the
 7

power of protection must be given to, and administered

by, the General Government.”). Kent, in writing about
the Clause, declared that “[i]t is just that [authors]
should enjoy the pecuniary profits resulting from
mental as well as bodily labour.” James Kent, 2
Commentaries on American Law 365 (6th ed. 1848).
Of course, the founding generation’s understanding
that individuals have a natural property right to the
fruits of their labor did not mean that such rights were
immune from certain modifications or adjustments on
the part of the government. See Randolph J. May &
Seth L. Cooper, The Constitutional Foundations of
Intellectual Property 27 (2015). Such modifications
“ensure[d] that the core of those natural rights [might]
be exercised, consistent with the equal exercise of
rights by others in civil society.” Id. Under Locke’s
view, individuals gave up the individual ability to
enforce their natural rights upon entering society. See
Locke, supra, at § 128, 297–98. But Locke also
recognized that “in creating civil society, individuals
not only secured the protection of their natural rights
but gained a litany of other rights that defined their
freedoms relative to their new fellow citizens and
public institutions.” Adam Mossoff, Who Cares What
Thomas Jefferson Thought About Patents?, 92 Cornell
L. Rev. 953, 971 (2007). These were rights not existing
in a state of nature but rather existing within, and as
part of, civil society. See id. at 971–72. Frequently,
these new rights were referred to as “privileges,” but
this did not change the fact that they were designed to
protect natural rights amounting to “fundamental civil
rights.” See id. at 970–71. For example, Madison
himself recognized the right to a jury trial as a
 8

“fundamental civil right.” Id. at 973–74. Of its very

nature, such a fundamental right could only exist
within civil society, but this did not change the fact
that it was rooted in securing the natural right to life
and liberty. See id. at 974. The same could be said
about the understanding of copyright law during this
time.
This Court’s very first case to deal with copyright
law confirmed the Founders’ view of the Copyright
Clause. While rejecting the notion that the Copyright
Clause secured to authors a pre-existing, perpetual
right to the fruits of their work, this Court nevertheless
recognized that the Clause empowered Congress to
protect the fundamental civil right that authors enjoy
to the fruits of their works under certain conditions
and time limits. See Wheaton, 33 U.S. at 657–58,
663–64. It held “[t]hat every man is entitled to the
fruits of his own labour . . . but he can only enjoy them,
except by statutory provision, under the rules of
property, which regulate society, and which define the
rights of things in general.” Id. at 658. This is a
textbook definition of a fundamental right existing
within civil society. While distinct from the natural
rights inhering in the state of nature, the Copyright
Clause is nevertheless based on such rights. See
Mossoff, supra, at 988–89 (“[C]ertain types of property
can be protected only in civil society, and we identify
these important civil rights by reference to the same
policy that justifies natural rights in property—
securing to each person the fruits of his labors.”).
 9

Had the Wheaton Court viewed the Copyright

Clause as grounded in utilitarian concerns, it would
never have termed legislation passed under that
Clause as serving to protect an author’s “right” to the
fruits of his or her labor. And despite occasionally
referring to copyright protections as “monopoly
privileges,” see, e.g., Sony Corp. v. Universal City
Studios, Inc., 464 U.S. 417, 428 (1984), at the end of the
day this Court has always understood the Copyright
Clause as empowering Congress to protect a
fundamental civil right to the fruit of one’s labor, even
if the nature and extent of that right may depend on a
particular statutory definition. This understanding
prompted the Court’s warning against understating the
relationship between the Clause’s purpose of furthering
the arts and sciences and its empowering of Congress
to ensure that authors receive appropriate
remuneration for their “creative labors.” See Eldred,
537 U.S. at 212 n.18.
This rights-based view of copyright law, based on
the Copyright Clause’s text as understood at the time
of its enactment, is a far cry from the pragmatic,
utilitarian view that the Warhol Foundation advances.
The Warhol Foundation describes the Clause as a mere
instrument to award creativity as a means of benefiting
the public and promoting free expression. See Pet’r’s
Br. 4. In fact, the Clause empowers Congress to protect
what was unanimously understood at the time of the
Clause’s enactment as being a fundamental civil right.
 10

B. The fair use doctrine has always been

interpreted to uphold the fundamental
civil right to the fruits of one’s labors.
It is only with the above background about how the
Copyright Clause empowers Congress to protect a
fundamental civil right that the fair use doctrine can be
properly understood. As Justice Joseph Story
emphasized over 200 years ago, the fair use doctrine is
a matter “in which it is not . . . easy to arrive at any
satisfactory conclusion, or to lay down any general
principles applicable to all cases.” Folsom v. Marsh, 9
F. Cas. 342, 344 (C.C.D. Mass. 1841) (Story, J.). He
went so far as to label it part of “what may be called
the metaphysics of the law, where the distinctions
are . . . very subtle and refined, and, sometimes, almost
evanescent.” Id. But despite this case-by-case, context-
specific nature of the doctrine, two principles emerge
upon an examination of the historical caselaw: (1) the
doctrine is at its narrowest where a “substantial
portion” of the original is copied onto the new work;
and (2) an author’s subjective interpretation regarding
the nature and meaning of the second work is never
dispositive to the extent such an interpretation
conflicts with an objectively reasonable observation. In
any event, the second work must be interpreted in a
manner that gives full vindication to the fundamental
civil right of the original author to the fruit of his or
her labor.
1. In Lewis v. Fullarton, the plaintiffs published a
topographical dictionary and subsequently sued the
defendant for publishing a dictionary that contained
material similar to theirs. See (1839) 48 Eng. Rep.
 11

1080.2 The court found it undisputed that “a

considerable portion of the matter which is contained
in the Plaintiffs’ work has found its way into the work
of the Defendant[.]” Id. But while the defendant and
his agents had a right to go to the same original
sources as the plaintiffs to compose their own work,
they did not have the right “to save themselves the
trouble and expense by availing themselves, for their
own profit, of other men’s works still subject to
copyright and entitled to protection[.]” Id. at 1081.
Were it to be held otherwise, “it is plain no protection
whatever could be given to any work . . . the subject-
matter of which is open to common observation and
enquiry[.]” Id. This would destroy the very nature of
copyright as protecting a fundamental civil right, as it
would mean “that every man who had bestowed any
amount of labour or expense in collecting and
arranging the information requisite for the production
of such a work, might immediately on its publication,
be deprived of the fruit of his industry and ability.” Id.
The court issued an injunction prohibiting the further
publication of those portions of the defendant’s
dictionary that they had lifted from the plaintiffs’ work.
See id. at 1083. In doing so, it also noted that if the
defendant could not separate out the parts of the work
borrowed from the original work without destroying the

2
Even following the Constitution’s enactment, American jurists
continued to cite recent developments in English law in support of
their conclusions on the fair use doctrine. E.g., Folsom, 9 F. Cas.
at 345, 348 (Story, J.). Accordingly, English cases following the
Constitution’s enactment still amount to persuasive authority on
the fair use doctrine.
 12

new work, the defendant had nobody to blame but

himself. See id. at 1082.
One of the very first American cases to deal with
the fair use doctrine—Folsom—likewise involved a
practical verbatim reproduction of the most important
parts of the original work. In that case, the plaintiff
published a collection of George Washington’s letters.
See Folsom, 9 F. Cas. at 345. The defendant published
his own “autobiography” of Washington that consisted
of quotations from the most important parts of
Washington’s letters set forth in the original work. Id.
It was undisputed that the defendant’s work was
“formed upon a plan different from that of [the
plaintiff] . . . .” Id. Nevertheless, Justice Story found
this to be a copyright infringement that fair use could
not overcome. “If so much is taken,” he wrote, “that the
value of the original is sensibly diminished, or the
labors of the original author are substantially to an
injurious extent appropriated by another, that is
sufficient, in point of law, to constitute a piracy . . . .”
Id. It was within this context that Story gave his
famous definition of “fair use” that has formed the
basis of the doctrine ever since. See id. (“[W]e
must . . . look to the nature and objects of the selections
made, the quantity and value of the materials used,
and the degree in which the use may prejudice the sale,
or diminish the profits, or supersede the objects, of the
original work.”).
In concluding that the new work did not constitute
a fair use of the original work, Justice Story was well
aware of the possibility that this might stifle creativity.
See id. at 349 (“I have come to this conclusion, not
 13

without some regret, that it may interfere, in some

measure, with the very meritorious labors of the
defendants, in their great undertaking of a series of
works adapted to school libraries.”). But any such risk
could not outweigh the fact that the second work
interfered with the fundamental civil right of the
original author to the fruits of his labor, and
accordingly the Justice enjoined publication of the
second work. See id.
Numerous English and American courts applied the
principles of Lewis and Folsom throughout the rest of
the nineteenth century. In the vast majority of cases
where the second author reproduced the most
important portions of the original work, the
reproduction was held not to amount to fair use. See,
e.g., Emerson v. Davies, 8 F. Cas. 615 (C.C.D. Mass.
1865) (Story, J.) (finding infringement where defendant
reproduced plaintiff’s book of arithmetic lessons with
similar lesson plans and page layouts); Bohn v. Bogue,
(1846) 10 Jurist 420 (enjoining publication of a book
about Lorenzo de Medici that quoted heavily from the
plaintiff’s earlier biography about Medici); Sweet v.
Benning, (1855) 139 Eng. Rep. 838 (finding
infringement where the defendant’s law digest copied
headnotes from the plaintiff’s law reports); Daly v.
Palmer, 6 F. Cas. 1132 (C.C.S.D.N.Y. 1868) (finding
infringement where the defendant performed a play
that reproduced a famous railroad scene in the
plaintiff’s original play with different text); Lawrence
v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869) (Clifford, J.)
(finding infringement where the defendant reproduced
the plaintiff’s international law treatise with his own
additional notes).
 14

A common theme running throughout all of these

cases is the conclusion that by reproducing a
substantial portion of the plaintiff’s original work, the
defendant interfered with the plaintiff’s fundamental
civil right to the fruit of the original work. See, e.g.,
Falk v. Donaldson, 57 F. 32, 36–37 (C.C.S.D.N.Y. 1893)
(ruling that an author “is entitled to any lawful use of
his property, whereby he may get a profit out of it”).
Whenever there is a conflict between infringing on the
fundamental civil right of the original author and the
risk of stifling creativity, courts have generally elected
to uphold the original author’s rights. See, e.g., Folsom,
9 F. Cas. at 349. Warhol’s utilization of Goldsmith’s
Prince photograph to make his own artwork is no
different from these earlier cases. Warhol literally
reproduced the entire portion of Goldsmith’s original
work. Prince’s face, as the subject of the photograph,
was the “raw material” available to both Goldsmith and
Warhol as artists. They both had an equal right to
attempt and take this raw material and turn it into
their own work through photography. But Warhol did
not have the right to skip a step by using Goldsmith’s
photograph as the basis for his own work. It is difficult
to find a more blatant example of copying a
“substantial portion” of an earlier work than here. It
cannot amount to fair use.
2. In addition to the above, an author’s subjective
interpretation of the second work has never been
dispositive in assessing fair use’s applicability. In one
early case, the English Court of Chancery ruled that
“[t]he intention to pirate is not necessary . . . it is
enough that the publication complained of is in
substance a copy, whereby a work vested in another is
 15

prejudiced.” Roworth v. Wilkes, (1807) 170 Eng. Rep.

889, 890. Over a century later, the Southern District of
New York—the originating court for this case—held
that “[t]he meaning or interpretation which the author
gives to her or his literary effort cannot be accepted as
the deciding test; the [work] must be judged as it is;
nothing can be read into it which is not there.” Wiren v.
Shubert Theatre Corp., 5 F. Supp. 358, 362 (S.D.N.Y.
1933), aff’d 70 F.2d 1023 (2d Cir. 1934). In other words,
courts must avoid getting bogged down in debates over
the author’s subjective interpretation of the secondary
work, because “the more the court is led into the
intricacies of dramatic craftsmanship, the less likely it
is to stand upon the firmer, if more naïve, ground of its
considered impressions upon its own perusal.” Id.
(quoting Nichols v. Universal Pictures Corp., 45 F.2d
119, 123 (2d Cir. 1930)).
This emphasis on the need to view the second work
“as it is,” without giving dispositive deference to the
author’s subjective interpretation of the matter, is a far
cry from what the Warhol Foundation is proposing
here. Under the Warhol Foundation’s argument, a
work is always transformative under the fair use
doctrine if its author subjectively interprets it as
conveying a new and different meaning from that of the
original work. This interpretation has no basis in the
fair use doctrine as courts have traditionally applied it,
and this Court should decline to adopt it.
 16

II. Holding Warhol’s work at issue here to be

“transformative” would expand the fair use
doctrine beyond anything previously known
and effectively negate copyright’s ability to
protect the fundamental civil right to the
fruits of one’s labors.
The Warhol Foundation’s argument is quite
striking—it boils down to the claim that so long as the
author of the second work subjectively interprets it to
have a different meaning than that of the first work,
then it is of its very nature “transformative” within
Campbell’s meaning and amounts to a fair use of the
original work. According to the Warhol Foundation,
this is the only way to prevent a stifling of creativity.
But as demonstrated above, the Copyright Clause
empowers Congress to protect the fundamental civil
right to the fruits of one’s labors through the enactment
of copyright laws, regardless of any utilitarian concerns
about stifling creativity. Any interpretation of the
Clause that would interfere with this right must be
rejected.
This case is highly similar to ones where authors
have substantially quoted earlier works while at the
same time adding small material of their own. The
Warhol Foundation maintains that Warhol’s subjective
interpretation of his revised version of Goldsmith’s
photograph of Prince conveys a new and different
meaning from that of the original photograph. This is
insufficient for a work to amount to fair use because
one must look at the work “as is,” not as the later artist
perceives it. Looking at the work “as is,” the Warhol
Prince Series is clearly just as much an artistic
 17

photograph as the original Goldsmith photograph. The

Warhol Foundation does not claim that the Prince
Series is a parody of the original Goldsmith photograph,
making this case readily distinguishable from Campbell
where this Court held that parody, of its very nature,
requires reproduction of the original work in some form.
See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,
588 (1994). No such parody is at work here.
Even more importantly, the Warhol Foundation has
proffered no reason why it was necessary for Warhol to
utilize Goldsmith’s photograph to make his own work.
There is no reason why Warhol could not have taken
his own photograph of Prince and then imposed his
unique artistic style upon that image. As noted earlier,
Prince, as an individual, was the common material
available to both Goldsmith and Warhol as artists.
Indeed, the evidence demonstrates that Warhol was
perfectly capable of photographing Prince himself. See
Resp’t’s Br. 38. Warhol did not have the right to “to
save [himself] the trouble and expense by availing
[himself], for [his] own profit, of [Goldsmith’s
photograph] still subject to copyright and entitled to
protection . . . .” See Lewis v. Fullarton, (1839) 48 Eng.
Rep. at 1081.
The adverse consequences that would follow from
adopting Warhol’s arguments are easy to see. Such an
interpretation of fair use would, for all practical
purposes, substantially diminish copyright protections
as they have been understood for nearly three
centuries. It would enable any artist to take another
artist’s pre-existing work in its entirety, make a de
minimis amount of modifications, then present it as a
 18

new work based solely on the second artist’s subjective

interpretation of the work as conveying something
different from the original. This Court cannot allow
such an interpretation of fair use to take hold.
Goldsmith is correct to argue that copying a
substantial portion of an original work is
“transformative” under the fair use doctrine only if
such copying was indispensable to accomplishing the
new work’s purpose. See Resp’t’s Br. 26. Parody and
criticism, for example, inevitably must copy certain
parts of the original work to accomplish their purpose.
But the Warhol Foundation has proffered no
explanation whatsoever as to why it was necessary for
Warhol to utilize Goldsmith’s photograph instead of
approaching Prince to take his own photo of the late
artist. Nor has it proffered any explanation about why
it would have been difficult for it to obtain
authorization from Goldsmith to print the Prince Series
following his death in 2016. It was Warhol’s decision to
utilize the work of another artist in creating the series,
and in the absence of him giving any reason why
Goldsmith’s particular work was essential to
accomplishing his purpose, the Warhol Foundation
cannot now complain about any adverse consequences
that may flow from such a decision. See Lawrence v.
Dana, 15 F. Cas. 26, 62 (C.C.D. Mass. 1869) (holding
that an author “has only himself to blame” if he has so
intermixed his own work with an original work that it
is impossible to enjoin publication of the original work
without also enjoining publication of the new work).
At the end of the day, Goldsmith has a fundamental
civil right to the fruits of her labor in producing her
 19

photograph of Prince. The Warhol Foundation is

seeking to negate that right by convincing this Court
that Warhol was allowed to skip a step in his own labor
as an artist and appropriate her work as the basis for
his own, despite Warhol’s project not requiring that he
do so. This does not amount to fair use—it amounts to
old-fashioned piracy, plain and simple. This Court
should reject such a radical interpretation of the fair
use doctrine.
CONCLUSION
This Court should affirm the Second Circuit.
Respectfully submitted,

CURT LEVEY JOHN M. REEVES

THE COMMITTEE FOR JUSTICE Counsel of Record
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Suite 729 7733 Forsyth Blvd.
Arlington, VA 22201
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[email protected]

Counsel for Amicus Curiae