The Supreme Court ruled Thursday against the Andy Warhol Foundation for the Visual Arts in a copyright dispute involving the late artist’s “Prince Series.”
The Warhol Foundation had asked the justices to review a lower court decision in favor of photographer Lynn Goldsmith, whose pictures Warhol used to create his series of more than 15 images of the now-deceased music icon.
The 7-2 decision, written by Justice Sonia Sotomayor, reasoned that Warhol did not have fair use of a photographer’s image of Prince when Warhol’s work was reprinted by a global media publication, infringing on Ms. Goldsmith’s rights.
“The purpose of the image is substantially the same as that of Goldsmith’s photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince,” the court ruled.
Ms. Goldsmith‘s black-and-white photograph of Prince was altered by Warhol in 1984, when Vanity Fair commissioned him to create artwork for an article headlined “Purpose Frame.” He created 15 colorful images of the original photograph and cropped it to not include the torso.
The magazine had licensed the photograph, taken three years earlier by Ms. Goldsmith, to Warhol. After Prince died in 2016, Warhol‘s version was reprinted in Conde Nast. (Warhol died in 1987.)
Ms. Goldsmith and the Warhol Foundation went to court over copyright laws and rights to the work, with Ms. Goldsmith looking to recover financially for the reprint of the photograph.
A federal district court ruled in favor of the foundation, saying Warhol’s art created a distinct message from Ms. Goldsmith’s original work. But the U.S. Court of Appeals for the 2nd Circuit reversed the ruling.
The high court’s decision Thursday affirms the 2nd Circuit.
Justice Elena Kagan, who was joined by Chief Justice John G. Roberts Jr., disagreed with the majority’s ruling — reasoning that Warhol’s work was transformative from the initial photograph taken by Ms. Goldsmith.
“The majority hampers creative progress and undermines creative freedom,” Justice Kagan wrote in her dissent.
The Warhol Foundation had unsuccessfully argued in its court filing that the work had new meaning based on Warhol’s alterations of the photograph. Ms. Goldsmith‘s legal team had argued that Warhol’s work did not “add something new.”
“We respectfully disagree with the Court’s ruling that the 2016 licensing of Orange Prince was not protected by the fair use doctrine,” Warhol Foundation President Joel Wachs said in a statement to The Washington Times. “At the same time, we welcome the Court’s clarification that its decision is limited to that single licensing and does not question the legality of Andy Warhol’s creation of the Prince Series in 1984. Going forward, we will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment.”
Patent attorney Randy McCarthy, a partner at Hall Estil, said the high court appeared to focus on the commercial purposes of the work — saying they were the same for the artist and the original photographer — and that the original photograph was identifiable in Warhol’s reproduction.
“The Supreme Court has upheld the Second Circuit’s decision that Andy Warhol Foundation (AWF) infringed the copyrights of the photographer, and that the changes made by AWF were not sufficient to qualify as fair use,” Mr. McCarthy said.
Joshua Schiller, an intellectual property lawyer at Boies Schiller Flexner, said the ruling suggests that an artist can create work and display it but may run into trouble if they advertise using it.
“Overall, the Warhol decision rolls back several decades of progress favoring more robust fair use protection, particularly for artists who borrow and transform existing works into original works of art and self-expression. And while I am sure artists can adapt and move forward, as Justice Kagan’s dissent astutely notes at the end: ’[i]t will make our world poorer,’” Mr. Schiller said.
The case was Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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