Supreme Court rules against Andy Warhol in copyright case
The Supreme Court ruled Thursday that Andy Warhol had no right to draw on Prince’s portrait by a prominent photographer for a series of images of the musician, thereby limiting the scope of the fair use defense copyright infringement in the field of visual arts.
The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection even against famous artists.”
Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., disagreed, writing that the decision “will stifle any kind of creativity.”
“It will hinder new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the acquisition of new knowledge. It will make our world poorer.”
Prince’s portrait was taken by Lynn Goldsmith, a successful rock photographer. In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to an article titled “Purple Fame.” The magazine paid Mrs. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and use it only in connection with a single issue.
In a series of 16 images, Warhol altered the photo in various ways, most notably cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, mask-like appearance.” Vanity Fair led one of them.
Warhol died in 1987 and the Andy Warhol Foundation for the Visual Arts took over ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue to celebrate his life. It paid the foundation $10,250 to use another image from the series for the cover. Mrs. Goldsmith has not received any money or credit.
A lawsuit ensued, much of it about whether Warhol had transformed Mrs. Goldsmith’s photo. The said the Supreme Court a work is transformative if it “adds something new, with a different purpose or character, and changes the former with a new expression, meaning, or message.”
The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869, concerned the boundaries of the fair-use defense, which allows for copying that would otherwise be illegal when it comes to activities such as criticism and news reporting.
Lower courts differed on whether Warhol’s changes to the photo changed it into something else. Judge John G. Koeltl of the Federal District Court in Manhattan ruled that Warhol had done so created something new by giving the photo a new meaning.
But a three-judge panel of the U.S. Court of Appeals for the Second Circuit said judges should compare how similar the two works are and leave the interpretation of their meaning to others.
“The subdistrict court may not take on the role of art critic and try to determine the intent behind or the meaning of the works in question.” Judge Gerard E. Lynch wrote for the panel. “That’s because judges are typically ill-suited to make aesthetic judgments and because such perceptions are inherently subjective.”