WASHINGTON — On Wednesday, a Supreme Court justice investigated pop artist Andy Warhol’s use of rock Whether the serigraph by star Prince infringes the copyrighted image of the photographer who shot the original.
Some judges appear to be skeptical that Warhol’s images constitute “fair use” under copyright law, in part because they don’t serve a sufficiently different commercial purpose than the original photographs by famed photographer Lynn Goldsmith: Both are used to illustrate a magazine article about Prince.
But other judges seemed concerned that the appeals court had minimized, or even ruled out, any analysis of whether Warhol’s work had significantly different meanings or messages than Goldsmith’s photographs. So one option might be to drop the ruling and ask a lower court to try again.
Conservative Justice Clarence Thomas revealed he was once a fan of the prince in this lively oral argument, which involved a considerable Legal issues of interest. Courts have wrestled with how to define whether a new work based on an existing work is “transformative” — meaning it doesn’t violate copyright law. Under the law, limited “fair use” of existing artwork is legal under certain circumstances, including when the new work conveys a different meaning or message.
Goldsmith sued Warhol for using her 1981 photo of then-rising star Prince, who went on to become known worldwide for hits such as “Little Red Cruiser” and “Dove Cry.” Three years later, as part of an arrangement with Vanity Fair, Warhol created a series of screen prints and two pencil drawings based on Goldsmith’s image. The original photo, Prince’s portrait, is in black and white, with a silkscreen overlay of vibrant colors over a cropped version of the original. This style is similar to other famous Warhol works, such as his portrait of Marilyn Monroe.
Under license from Goldsmith, Vanity Fair used photo-based Warhol illustrations for its November 1984 issue without issue. But Goldsmith said she was unaware of the other unlicensed images Warhol created, a fact that came after Vanity Fair publisher Condé Nast used another image as a 2016 Prince tribute immediately after the rock star’s death only realized after part of it.
Warhol himself died in 1987, and related works and copyrights are now held by the Andy Warhol Foundation, which allowed Vanity Fair to use the image in 2016. Goldsmith was not credited.
The issue ended in court the following year, with Goldsmith and the foundation suing each other to determine whether Warhol’s image constituted fair use.
In 2019, a federal judge ruled in favor of the foundation, calling Warhol’s imagery transformative because while Goldsmith’s photo showed a “fragile man,” Warhol’s image depicts an “iconic, extraordinary figure”.
The foundation sought Supreme Court review after the New York-based U.S. Court of Appeals for the Second Circuit ruled in Goldsmith’s favor in March 2021. The appeals court accused the district court of focusing on the artist’s intentions, saying the judge “should not be in that role or as an art critic.” Instead, the judge must check whether the new work is radically different from the original, the court said. The court added that it “must contain, at a minimum, more than the other artist’s style imposes on the main work”.
During Wednesday’s argument, the judge questioned whether Warhol’s image of Prince served a different purpose than Goldsmith’s because both were used commercially in the same way to illustrate articles about the singer. Under copyright law, courts weigh whether a new work would compete with an existing work and diminish its market value.
Judge Sonia Sotomayor challenged the Warhol Foundation attorney Romain Martinez on the issue, asking whether the fact that the images actually had the same market was enough to “destroy your defense.”
Justice Neil Gorsuch made a similar point, noting that the prince’s image was very different from Warhol’s famous Campbell’s soup can because the latter’s purpose was clearly different.
“Campbell’s soup seems simple. Andy Warhol’s use is not to sell tomato soup in a supermarket. It’s to elicit a response from an audience in a museum or other setting,” Gorsuch said.
“The difficulty with this case is that this particular image is arguably used, perhaps, for the same purpose, to identify a person in a magazine,” he added.
Not all justices seemed to agree with that assessment, with Chief Justice John Roberts saying Warhol’s photo and Goldsmith’s could be viewed as fundamentally different.
“It’s a different style. It’s a different purpose. One is a commentary on modern society. The other is showing what a prince looks like,” he said.
Justice Elena Kagan seemed to have taken a similar view, noting that Warhol’s work was highly sought after by museums because “he was a transformative artist.”
Justice Samuel Alito questioned the extent to which courts should respect expert witnesses when deciding whether a work exhibits a different meaning. He points out that while the average person might see a copy of Leonardo da Vinci’s Mona Lisa, in which the subject wears a dress in a different color, Renaissance art experts might consider it transformative.
“You make it sound simple, but at least in some cases, determining the meaning or message of a piece of art may not be that simple,” Alito Martinez said.
The justices also debated relevant Supreme Court precedent cited by both parties, which held in a 1994 ruling that when 2 Live Crew composed a song called “Pretty Woman,” it was fair use, which The song is a parody of Roy Orbison’s “Oh Pretty”. Miss. In another pop culture reference, Blatter alluded to the value of spinoffs to the entertainment industry, citing a TV show based on the 1970s comedy “Family Portrait,” itself based on a British sitcom.
Various stakeholders have submitted briefs advising judges on what approach to take, including film and music industry groups, educational institutions and individual artists. (Universal, a division of NBC News’ parent company NBCUniversal, is a member of the Motion Picture Association, which filed a brief in the case in support of either party.)
The way both sides approach legal issues depends in part on how much their work relies on protecting their own copyrighted material rather than fair use of others’ copyrighted content.