A photographer who claims 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 urged the Supreme Court on Oct. 12 to make the foundation pay up.
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.
The Supreme Court’s decision in the case could have wide ramifications for cultural industries including movie-making and other businesses such as computer programming.
Under the fair-use legal doctrine, copyrighted material may be used in a limited way without the prior consent of the copyright holder.
The foundation invokes fair use as a defense and says a loss in court would chill free expression because artists would be reluctant to develop new interpretations based on existing works. The Biden administration countered in a brief that the court shouldn’t create a “celebrity-plagiarist” exception to fair use by giving artists who copy original works special protection against infringement lawsuits.
The case is Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, court file 21-869.
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 Prince died in 2016, Condé Nast magazine put out a tribute issue with one of Warhol’s Prince works on the cover. When Goldsmith saw the 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.
A federal district court sided with Goldsmith, but in 2021, the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the foundation’s use of Goldsmith’s photo constituted fair use under copyright law.
Foundation attorney Roman Martinez said during oral arguments before the high court that “the stakes for artistic expression in this case are high.”
Ruling for Goldsmith “would strip protection not just from the Prince Series but from countless works of modern and contemporary art,” making it illegal “for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works.”
This would “chill the creation of new art by established and up-and-coming artists alike,” which would be “repugnant to copyright and to the First Amendment.”
Warhol’s Prince Series “can reasonably be perceived to convey a fundamentally different meaning or message from Goldsmith’s photograph,” Martinez said. The issue “is whether that different meaning or message should play a role, any role, in the fair use analysis.”
Justice Samuel Alito wondered how a court could go about analyzing the meaning or message of a work of art.
“Should it receive testimony by the photographer and the artist? Do you call art critics as experts?” Alito said.
Martinez said the Supreme Court decided in Campbell v. Acuff-Rose Music Inc. (1994) that rap group 2 Live Crew’s version of Roy Orbison’s song “Oh, Pretty Woman” was a parody, which made it fair use.
The rap group borrowed from Orbison’s song to an extent, but instead of praising the woman as Orbison did, the group mocked the woman in question as unattractive and unfaithful.
Martinez said “the standard run-of-the-mill way that ... litigants in ... these copyright cases try to argue about and establish meaning or message” is by examining the work itself and sometimes by receiving evidence from the creator and experts.
“And we think that’s totally appropriate in this circumstance,” the lawyer said.
Alito replied: “You make it sound simple but maybe it’s not so simple.
“There can be a lot of dispute about what the meaning or the message is. Some people would say it’s not necessarily the meaning or the message that the artist had in mind.”
Justice Elena Kagan shared Alito’s skepticism about how to analyze an artwork, saying someone might say that all Warhol did was add color to the original photo. “It seems that it’s harder than you say,” she told Martinez.
Goldsmith’s attorney, Lisa Blatt, said invoking fair use doesn’t excuse the foundation’s behavior.
“The reason can’t be to avoid paying the customary price or the drudgery of coming up with something fresh,” she said, adding that when he was alive, Warhol himself followed the rules by paying the photographer.
“Adding new meaning” is not “a good enough reason to copy for free,” she said. That test “would decimate the art of photography by destroying the incentive to create the art in the first place, and it’s obvious why the multi-billion dollar industries of movies, music, and publishing are horrified.”
“Copyrights will be at the mercy of copycats. Anyone could turn Darth Vader into a hero or spin off ‘All in the Family’ into ‘The Jeffersons’ without paying the creators a dime,” she said.
Chief Justice John Roberts told Blatt the photo and Warhol’s work were substantially different.
“It’s not just a different style. It’s a different purpose. One is the commentary on modern society. The other is to show what Prince looks like,” Roberts said.
During the hearing, Justice Clarence Thomas acknowledged he was a fan of Prince in the 1980s.
Kagan interjected, “No longer?” to laughter from the audience in the courtroom
“Well, so only on Thursday night,” Thomas said to more laughter.
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