This article argues that the Supreme Court’s recent and significant ruling in Warhol v. Goldsmith suffers from a foundational error that jeopardizes its value as precedent. Namely, the Court conceptualized the fair use defense at issue as arising from the alleged infringer’s “commercial licensing” of an Andy Warhol silkscreen to a non-party magazine publisher. But commercial licensing is neither a copyright use nor an act of infringement. It is the passive grant of permission to another to use the licensed work and a promise not to sue. It is incoherent to raise or evaluate fair use as a defense to an act that is not a copyright use or infringement. This flaw, moreover, is neither an accident of the decision nor an immaterial oversight. Rather, it goes to the heart of the Court’s framing of and reasoning in the case and raises significant normative concerns. Despite its importance, however, the Court never defended (and perhaps never noticed) this basic structural flaw in its reasoning. After explicating the nature and cause of the error, and exploring its magnitude, the article offers possible rehabilitative readings of the opinion that attempt to honor the Court’s intention while avoiding the licensing-as-use error.
