In a decision that could have a major impact on artistic expression, the U.S. Supreme Court today (May 18) ruled against the Andy Warhol Foundation in a suit involving a copyright violation via the late artist’s appropriation of an image of Prince by photographer Lynn Goldsmith.
The Warhol Foundation said the art at issue, a 1984 Prince silkscreen of a photo taken by Goldsmith three years earlier, was protected by the fair use doctrine because it was transformative and had fundamentally changed the meaning conveyed by the original image.
After the Warhol image was published again by Vanity Fair parent company Conde Nast following Prince’s 2016 death, Goldsmith sued under the grounds that this standard renders copyright law “completely unworkable,” and that it would be up to a judge’s discretion to parse the intent and meaning of art vis-a-vis its transformative aspects and possible infringement.
Justice Sonia Sotomayor wrote the decision for the 7-2 majority, which included a rare dissent by fellow liberal justice Elana Kagan. “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Sotomayor said. “To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals.”
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Echoing concerns in the artistic community, Kagan wrote in her dissent, “You’ve probably heard of Andy Warhol; you’ve probably seen his art. You know that he reframed and reformulated — in a word, transformed — images created first by others,” referencing his manipulation of Campbell’s soup cans and Brillo boxes. “That’s how Warhol earned his conspicuous place in every college’s Art History 101. So it may come as a surprise to see the majority describe the Prince silkscreen as a ‘modest alteration’ of Lynn Goldsmith’s photograph.”
“It will stifle creativity of every sort,” she continued. “It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
“Prince is likely smiling as he supports photographers today! He continues to lead and advance the rights of creators (photographers in this instance),” Prince’s longtime attorney and advisor L. Londell McMillan wrote on Twitter. “Salute to Justice Sotomayor who called Prince ‘one of the greatest rock stars of the 20th Century.’l
The ruling was hailed by the National Music Publishers Association as “a massive victory for songwriters and music publishers. This is an important win that prevents an expansion of the fair use defense based on claims of transformative use. It allows songwriters and music publishers to better protect their works from unauthorized uses, something which will continue to be challenged in unprecedented ways in the AI era.
“As we reinforced in our amicus brief, copyright owners should have the right to make or approve decisions about new, reimagined uses of their works,” its statement added. “This decision enhances our ability to protect songwriters from increasingly broad claims from would-be infringers of fair use, strengthening creators’ rights to determine how their art is exploited and valued.”
“We are still digesting the opinion, but we are glad to see that that the Supreme Court did not adopt the Second Circuit’s extreme interpretation of the first fair use factor,” says Electronic Frontier Foundation senior staff attorney Cara Gagliano. “In finding that the Warhol Foundation’s use was not transformative, the Court construed the alleged infringing use narrowly — ’to illustrate a magazine about Prince with a portrait of Prince.’ And it then found that, in combination with the use’s commerciality, the first factor favored Goldsmith. In applying the decision going forward, lower courts should note both that the opinion is limited by the facts of the case and that it substantially reaffirms prior formulations of this part of the fair use analysis.”
Click here to read the Supreme Court’s full ruling.