Thirty-five years after he died, Pittsburgh native Andy Warhol will be at the center of a U.S. Supreme Court case this month to determine if he violated copyright law.
Three years before his death in 1987, Warhol created a painting of the rock star Prince that was based on a photograph taken by Lynn Goldsmith, a renowned photographer in her own right, in 1981.
The question the court will answer is whether Warhol transformed Goldsmith’s original image enough to make his painting distinct from Goldsmith’s photograph, or whether he violated copyright law in using the image without permission.
So far, a federal court in Manhattan decided that Warhol did not violate copyright law, but the U.S. Court of Appeals for the Second Circuit sided with Goldsmith. In its ruling, the appeals court stated the painting was “substantially similar to the Goldsmith photograph as a matter of law.” That ruling was appealed to the U.S. Supreme Court by the Andy Warhol Foundation for the Visual Arts, which argued that the appeals court ruling threatened an entire genre of art and that, if left to stand, would necessitate landmark change in copyright law.
In the simplest terms, copyright, as it applies to artistic work in any form, begins once the artist creates the painting, photograph, story, or musical composition, and protects the artist’s right to make and sell copies of it, distribute those copies, make new works from it, and (when applicable) publicly display or perform the artistic work. Copyright for an artistic work lasts for the life of the author plus an additional 70 years.
Some artists will take the additional step of registering their work through the U.S. Copyright Office, which requires an application, filing fee, and a copy of the artwork. The Copyright Office then reviews the application to ensure that the work is eligible for copyright protection. By registering their work, artists then have a certificate of registration, which is necessary if they wish to sue someone for copyright infringement.
Copyright law also provides for others to use the artwork under certain conditions, known as the “Fair Use” provisions that include uses for criticism, comment, news reporting, teaching, scholarship or research. So, for instance, using the artwork to write a review or criticism of the work is permissible. Where the law gets hazy and becomes harder to judge is when someone takes another person’s work, modifies it in some way, and then displays or sells it as his or her own work. Did the second artist transform the original work enough so that it could be considered a new work of art or is it a violation of the original artist’s copyright? That is the question before the Supreme Court this month, and it will be interesting to see how it decides.