The Supreme Court ruled 7-2 in favor of a photographer who claimed her intellectual property rights were violated by Andy Warhol’s eponymous foundation when it published multiple stylized prints he made based on her photo of the iconic musician Prince.
Warhol, a painter, print-maker, and multimedia artist, died in 1987 at age 58. Prince, who was born Prince Rogers Nelson, died in 2016 at 57.
Warhol cropped the photo, resized it, and changed other details. In a silkscreen, Warhol added other colors to it, along with shading that exaggerated Prince’s features. The magazine published the image, credited Goldman, and paid her $400 for the “source photograph” and she received credit for taking it.
Warhol created 15 more images of Prince using Goldsmith’s photo, making various alterations. Warhol’s treatment of the photo “transformed” Goldsmith’s intimate portrait into “an iconic, larger-than-life figure” that stripped Prince of the “humanity … [embodied] in [the] photograph” in order to highlight how society encounters and consumes celebrity, a federal district court found in the case. Since 1984, the Prince Series works have been displayed in galleries, museums, and other public places dozens of times.
After Warhol died, his foundation licensed one of the images to Conde Nast, again for the purpose of illustrating a magazine story about Prince. The foundation was paid $10,000, but Goldsmith received nothing and was not given credit for taking the photograph. When Goldsmith saw one of the images on the magazine cover, she threatened to sue the Warhol Foundation, which held the rights to the series, for copyright infringement. The foundation sued Goldsmith in 2017 seeking a declaratory judgment that there was no copyright violation. Goldsmith countersued.
The foundation invoked fair use as a defense and argued a loss in court would chill free expression because artists would be reluctant to develop new interpretations based on existing works. Under the fair-use legal doctrine, copyrighted material may be used in a limited way without the prior consent of the copyright holder.
A federal district court ruled that Warhol’s contributions created something new within the meaning of the fair use doctrine, but in 2021, the U.S. Court of Appeals for the 2nd Circuit reversed, holding for Goldsmith.
The Biden administration sided with the photographer, arguing that the Supreme Court shouldn’t create a “celebrity-plagiarist” exception to fair use by giving artists who copy original works special protection against infringement lawsuits.
In her opinion, Sotomayor affirmed the 2nd Circuit ruling and acknowledged the importance of copyright law.
“If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity,” she wrote.
“Lynn 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. 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. AWF has offered no other persuasive justification for its unauthorized use of the photograph,” the justice wrote.
In her dissent, Kagan called Warhol “the avatar of transformative copying” and accused the court majority of “constricting fair use’s boundaries,” a move that “hampers creative progress and undermines creative freedom.”
“In declining to acknowledge the importance of transformative copying, the Court today, and for the first time, turns its back on how creativity works,” she wrote.
“Shakespeare borrowed over and over and over,” Kagan wrote, but he “also added loads of genius” when he transformed material.
The majority’s decision to deny Warhol credit for transforming the Prince photo, “distorts ultimate resolution of the fair-use question” and has troubling implications for other artists, she wrote.
“If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more.”
The majority opinion “will stifle creativity of every sort. 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,” Kagan wrote.
In the majority opinion, Sotomayor addressed Kagan’s dissent, writing, “It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work.”
“Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers,” Sotomayor wrote.
Goldsmith told Reuters she was “thrilled” with the ruling, saying it was a “great day for photographers and other artists who make a living by licensing their art.”
Joel Wachs, president of the Andy Warhol Foundation, told the media outlet that AWF did not agree with the ruling, but was pleased that it dealt solely with the Conde Nast license and did not “question the legality of Andy Warhol’s creation of the Prince series.”
