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The Supreme Court rules against the Warhol Foundation in the fight for the copyright of the images of Prince


May 18, 2023

WASHINGTON (AP) — The Supreme Court ruled Thursday that pop artist Andy Warhol’s screen prints of rock star Prince infringed the copyright of a prominent photographer who captured the original image.

In a victory for photographer Lynn Goldsmith, the court ruled 7-2 that Warhol’s images did not constitute «fair use» under copyright law, a decision that will have considerable impact on several creative industries. The ruling is beneficial to individuals who own copyrighted content on which other works are based and could have a negative impact on entities creating new works based on existing material.

“This is a great day for photographers and other artists who make a living out of licensing their art,” Goldsmith said in a statement.

Whether a work is being used for commercial purposes is just one of several factors used to analyze copyright infringement.

The court in a ruling by Judge Sonia Sotomayor concluded that the works made by Warhol did not serve a commercial purpose sufficiently different from the original photo taken by Goldsmith: Both are used to illustrate magazine articles about Prince.

Sotomayor wrote that the images «substantially share the same purpose and use is of a commercial nature.» The Warhol Foundation «offered no other persuasive justification for the unauthorized use of the photograph,» he added.

Sotomayor said the ruling was narrow, noting that even other Warhol works, including his famous images of Campbell’s soup cans, would be viewed differently. While Prince’s images were used to illustrate a magazine story, which is the same purpose Goldsmith’s photos would be used for, the soup can series «uses Campbell’s copyrighted work for a artistic commentary on consumerism,» Sotomayor wrote.

Justice Elena Kagan wrote a scathing dissenting opinion, joined by Chief Justice John Roberts, criticizing her liberal colleague Sotomayor.

She said most downplayed the impact of Warhol’s art in transforming the nature of the images, focusing instead on the fact that he had engaged in a business deal with a magazine.

“Because the artist had such a commercial purpose, all the creativity in the world couldn’t save him,” he wrote. The ruling will limit artists and creativity because any artwork that uses existing materials is in danger of violating copyright law, Kagan wrote.

As a result, the ruling «hinders creative progress and undermines creative freedom,» it added.

Kagan dismissed Sotomayor’s attempt to distinguish the images from the soup cans, saying the court was «cutting the nonsense pretty fine».

During lively oral argument in October, in which conservative judge Clarence Thomas admitted he was once a fan of Prince, the judges invoked artists as diverse as Renaissance maestro Leonardo da Vinci and rap group 2 Live Crew.

The case raised a legal question of great interest to people in all kinds of creative industries, including television, film, and fine art. It required the court to wrestle with how to define whether a new work based on an existing one is «transformative,» meaning it does not violate copyright law. Under the law, limited «fair use» of a pre-existing work of art is legal in certain contexts, even when the new work conveys a different meaning or message.

Goldsmith sued over Warhol’s use of his 1981 photograph of Prince, then a rising star, before he rose to worldwide fame thanks to hits like «Little Red Corvette» and «When Doves Cry.» As part of a deal with Vanity Fair magazine three years later, Warhol created a series of silkscreen prints, as well as two pencil sketches, based on Goldsmith’s image. While the original photo, a portrait of Prince, was in black and white, the silkscreens superimposed bright colors over a cropped version of the original photo. The style was similar to Warhol’s other famous works, such as his portraits of Marilyn Monroe.

Under a license it had obtained from Goldsmith, Vanity Fair used a Warhol illustration based on the photo in its November 1984 issue without issue. But Goldsmith said he was unaware Warhol had created other unlicensed images, a fact he became aware of only after Vanity Fair publisher Condé Nast used a different image as part of a tribute to Prince in 2016. immediately after his death.

Warhol died in 1987, and the relevant copyright and works belong to the Andy Warhol Foundation, which allowed Vanity Fair to use the image in 2016. Goldsmith was not credited.

The following year, the matter ended in court, 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, saying Warhol’s images were transformative because while Goldsmith’s photo depicted a «vulnerable human being,» Warhol’s prints depicted an «iconic figure larger than life.» life».

The foundation sought Supreme Court review after the New York-based US Court of Appeals for the Second Circuit ruled in March 2021 in favor of Goldsmith. Instead, a judge must examine whether the new work is of a completely different character from the original, the court said. It must, «at a minimum, comprise more than the imposition of another artist’s style on the main work,» the court added.

As part of the case, the justices debated a relevant Supreme Court precedent cited by both sides, a 1994 ruling in which the court held that it was fair use when 2 Live Crew created a song called «Pretty Woman» that was a Roy parody. «Oh, pretty woman» by Orbison.

Various stakeholders filed briefs advising the judges on which approach to take, including film and music industry groups, educational institutions, and individual artists. Universal Pictures, a division of NBC News parent company NBCUniversal, is a member of the Motion Picture Association, which filed a report in support of neither party.