Andy Warhol, Pittsburgh native, died in 1987 and the rock musician Prince died in 2016, but they were at the center of a recent U.S. Supreme Court case, where the court upheld, by a 7-2 vote, the copyright claim of photographer Lynn Goldsmith.
The events that precipitated the disputed case began in 2016, but the history goes back to 1981, when Goldsmith took a photo of Prince. Three years later, the magazine Vanity Fair commissioned Andy Warhol to make a series of silk screen prints of Goldsmith’s original photograph and paid the photographer a one-time usage fee of $400 plus a photo credit to permit Warhol to make the prints. So far so good.
After Prince’s death in 2016, the Andy Warhol Foundation licensed one of Warhol’s silk screens of Goldsmith’s photograph to Vanity Fair for use with an article they were going to publish about the musician. Goldsmith sued saying that the silk screen print violated her copyright. The foundation’s defense was that Warhol’s print was considered “fair use,” meaning Warhol had transformed Goldsmith’s original image enough that it couldn’t be considered copyright infringement.
The case was brought to federal district court, which ruled in favor of the foundation. That ruling was overturned by the U.S. Court of Appeals, and the case was appealed to the Supreme Court.
Writing for the majority, Justice Sonia Sotomayor wrote, “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists…Such protection includes the right to prepare derivative works that transform the original.”
She added, “The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.”
The dissenting opinion, written by Justice Elena Kagan and joined by Chief Justice John Roberts, lamented that the court’s decision would “stifle creativity of every sort.”
Whether the ruling does or doesn’t stifle future creativity, most observers feel, including our copyright practice team, that the Court’s decision reconfigured the fair-use test, but with less clarity and more uncertainty than many had hoped. Fair use traditionally is invoked to allow the unauthorized use of copyright protected works under certain circumstances. Those circumstances usually apply to artistic expression in the interest of parody, education, and criticism, to name just a few.
In this ruling, the Court focused on whether the licensing of Warhol’s image violated Goldsmith’s copyright, and not with whether Warhol’s art violated Goldsmith’s copyright in the first place. By limiting its ruling, the Court’s decision will no doubt result in additional copyright infringement cases in the coming years.