Supreme Court battle over Warhol portrait may redefine copyright law

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The Supreme Court battle over Andy Warhol’s Prince portrait could remake copyright law

The news: The Supreme Court is set to hear a case on Wednesday that will require it, once again, to try to draw the line between using someone else’s art as inspiration and copyright infringement.

In Andy Warhol Foundation for the Visual Arts v. Goldsmith, the court will decide if “Orange Prince,” one of famed artist Andy Warhol’s illustrations of the musician Prince, is “fair use” of the photo the work is based on, by Lynn Goldsmith — a legend in her own right who photographed many other rock stars of the era, including Bruce Springsteen and the Rolling Stones.

On a broad level, the court’s ruling could carry implications for how artists draw inspiration from photos. More narrowly, the case may affect how museums display the originals or reproductions from Warhol’s “Prince Series,” including the image based on Goldsmith’s photograph. This case, given the celebrities involved, has received lots of attention, attracting dozens of amicus filings on both sides.

The case: In 1981, Goldsmith took a photo of Prince, which Vanity Fair later sent to Warhol to use as a reference for his illustration of the pop star, titled “Purple Prince.” The magazine paid Goldsmith a license fee and credited her as the source.

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Decades later, after both Warhol and Prince died, Condé Nast (Vanity Fair’s parent company) published “Orange Prince,” another image based on the same photograph, paying the Andy Warhol Foundation — and not Goldsmith — a $10,250 license fee.

The case before the court asks whether the second use of the photograph infringes Goldsmith’s copyright.

Debates over the scope of fair use, Paul Szynol, a media attorney and professor at the University of Michigan Law School, wrote, are largely between two viewpoints, one held by copyright “maximalists,” who believe copyright should charge for every use case, and the other by copyright “reformers,” who push back, arguing that while artists should benefit from use of their work, aggressively wielding copyright law can stymie societal progress.

History: It’s all based on copyright law, not the First Amendment

The first fair use case, settled in 1841, didn’t rely on the First Amendment, as some might assume, but copyright law.

Judge Joseph Story ruled that publication of a biography of George Washington, which tried to publish a large volume of letters found in previous books, wasn’t fair use and therefore was in violation of copyright law.

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The opinion laid out fair use principles that courts still apply to books, photos, music, software and anything that’s copyrightable, wrote Szynol.

Fair use law essentially allows creators to build on existing work. “It’s how the legal system allows us to stand on the shoulders of giants when we don’t have the money to pay the enterprising copyright owner for the privilege,” he wrote.

This case gives the Supreme Court justices another chance to offer their take on the “fair use” doctrine in copyright law, Ronald Mann, a law professor at Columbia University, wrote in a case preview for SCOTUS Blog. One of the more relevant cases is a 1994 decision that determined a parody by 2 Live Crew of Roy Orbison’s song “Oh, Pretty Woman” was fair use. While this case dealt with parody, it was responsible for elevating the transformative use test later used by lower courts.

Legal: Did Warhol transform the “meaning” of Goldsmith’s photo enough?

Harvard Law School professor Rebecca Tushnet, who co-authored a brief in support of Warhol, told Reuters that the court’s take on the case is “very hard to predict.”

The Andy Warhol Foundation’s brief, referencing the court’s 2 Live Crew decision, argues that the Warhol images were fair use because they were “transformative” in adding a new “meaning” or “message,” Mann wrote. Warhol’s series changed the photograph into an image with a “flat, impersonal, disembodied, mask-like appearance.”

Goldsmith’s brief, on the other hand, argues that Warhol’s “new expression” didn’t do enough to transform the work, Mann wrote.

She also argued that the foundation’s focus on whether or not the image is transformative ignores the other three factors in the fair use test under U.S. copyright law, which consider the nature of the copyrighted work, amount and substantiality of the copying, and effect of the market and value on the original work, he added.

In 2019, the U.S. District Court for the Southern District of New York ruled that the Warhol image was fair use of the photograph. Last year, the U.S. Court of Appeals for the 2nd Circuit reversed the decision, saying that the image failed the fair use test under U.S. copyright law, essentially saying Warhol’s image didn’t do enough to transform the original photo. The 2nd Circuit also criticized the district court for relying on a subjective assessment of Warhol’s work, Mann wrote.

Culture: What this case means for artists

The line between inspiration and copyright infringement has fairly significant implications for the art world.

The foundation argued in its brief that if the 2nd Circuit’s decision stands, it would “chill creative speech” by preventing artists who borrow from others’ fair use protection, Martha Lufkin reported in the Art Newspaper. Goldsmith has pushed back, Lufkin wrote, saying these warnings over “the death of art,” are exaggerated because the foundation lost the fair use test.


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“When the Supreme Court finds a particular use to be fair, it provides a safe framework for that genre of creativity,” Syznol wrote in the Atlantic, giving the example of parodies based on copyrighted materials.

“Content creators, especially independent ones who don’t have access to legal counsel, not only will abstain from doing the precise thing banned by the Court (e.g., drawing something based on a photo), but will also fear doing anything that approaches that particular use,” he wrote. In other words, artists and creators who rely on similar techniques across art forms are threatened by this case.

Business: No clear direction for museums or galleries

Art museums are also concerned about what the outcome of this case might mean for displaying or publishing original works from and reproductions of Warhol’s “Prince Series,” given that the 2nd Circuit’s decision didn’t address this issue.

“This left uncertain whether museums or collectors may be potentially liable for copyright infringement for displaying or publishing Warhol’s works as part of their mission,” Simon J. Frankel, a copyright lawyer who filed an amicus brief on behalf of several art museums and the Association of Art Museum Directors, told the Art Newspaper. “A decision from the Supreme Court should make clear such museum uses would be permissible.”

Further reading:

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CASE PREVIEW: Justices to consider whether Warhol image is “fair use” of photograph of Prince (SCOTUS Blog)

The Andy Warhol Case that could Wreck American Art (The Atlantic)

Battle lines drawn as Andy Warhol copyright case goes to US Supreme Court (The Art Newspaper)

Fair Use Index (U.S. Copyright Office)

Thanks to Lillian Barkley for copy editing this article.

  • Anna Deen
    Anna Deen

    Data Visualization Reporter

    Anna Deen is a data visualization reporter at Grid.