Supreme Court Rules Against Andy Warhol Foundation in Copyright Battle Over Prince Image

On 18 May 2013, the US Supreme Court ruled that Andy Warhol infringed on a copyright held by photographer Lynn Goldsmith. He created a series of silk screen images based on a photograph of the late musician Prince captured by Goldsmith in 1981. She had sued the Andy Warhol Foundation for the Visual Arts for copyright infringement in 2016.

The court ruled 7-2 in favor of Lynn Goldsmith. 

In a statement to Trademarkia, Goldsmith said, “I am thrilled by the decision and thankful to the Supreme Court for their 7-2 ruling. This is a great day for photographers and all artists who make a living by licensing their art.”

And the decision is a historic one. The trial has been in the spotlight, and that's not just because of the famous artists involved. It has also led to a debate around artistic expression and the "fair use doctrine" for copyrighted works of art.

What is the "Orange Prince" photograph everyone's fighting over?

In 1984, American singer, songwriter, and producer Prince released the now-iconic song "Purple Rain." Soon after, Vanity Fair commissioned a piece by Warhol to go with an article titled “Purple Fame.”

Warhol based his work on the photo of Prince by Lynn Goldsmith. She had shot the portrait in 1981 as a rock photographer on assignment for Newsweek at the time.

Vanity Fair licensed the portrait from Goldsmith for $400. This was for one-time use with an agreement to give due credit.

Warhol altered the photograph to create 16 images — two pencil drawings and 14 silk screen prints.

The silk screens are a style that made Warhol one of the behemoths of the Western art world. He has also produced such portraits of Marilyn Monroe, Jacqueline Kennedy, and Mao Zedong.

He resized Goldsmith's image, changed the tones and lighting, and added hand-drawn outlines and bright colors. Vanity Fair chose one of the 16 images and printed it with the story as planned.

What is the Andy Warhol copyright infringement case about?

Warhol died just a few years later, in 1987, and the ownership of all his work came under the Andy Warhol Foundation for the Visual Arts.

But it was when Prince died decades later in 2016 that the trouble started.

After Prince's death, Condé Nast (Vanity Fair's parent company) released a special issue to commemorate the life of the legendary artist. They paid the Andy Warhol Foundation $10,250 to use another image from Warhol's Prince series, titled "Orange Prince," for the cover image.

Lynn Goldsmith received no money or credit for this use. They went to court when she contacted the foundation for compensation and credit. They sought to protect Warhol's images from claims of infringement on Goldsmith's copyright.

Initially, a federal district court ruled in favor of the Andy Warhol Foundation. It deemed Warhol's work transformative enough from Goldsmith's original portrait to be protected under "fair use." But that ruling was later overturned by the 2nd US Circuit Court of Appeals.

What is the doctrine of fair use?

The fair use of a copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright in the USA.

To determine if the use of original work is fair use, these factors are taken into consideration:

• The purpose and character of the use, including whether it is for commercial or nonprofit, educational purposes.
• The nature of the copyrighted work in how it relates to the copyright's purpose of encouraging creative expression.
• The amount and substantiality of the portion used concerning the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work. This means deciding to what extent the unlicensed use harms the existing or future market for the copyright owner's original work.

The Supreme Court rules against Andy Warhol

On 18 May 2013, the Supreme Court delivered its verdict in the case. This was after much deliberation on two questions:

1. Was Andy Warhol's creation "transformative" enough?
2. Did it convey a different meaning or message than the original photo?

"And thus was not infringing on the copyright under the doctrine of fair use," Justice Sonia Sotomayor wrote for the majority vote.

She said: “Original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

Addressing the issue of fair use, she said:

"The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original.

In this case, however, Goldsmith's original photograph of Prince and AWF's copying use of that photograph in an image licensed to a special edition magazine devoted to Prince share substantially the same purpose, and the use is of a commercial nature."

But, Justice Elena Kagan and Chief Justice John Roberts filed a dissent, stating: "It will stifle creativity of every sort. It will impede new art, music, and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer."

What are the implications of the verdict?

Lynn Goldsmith talked to Trademarkia about the challenges of an IP battle with a large organization. She hopes it will pave the way for people to claim legal protection under the US Copyright law.

“I hope this SCOTUS ruling is a lesson that people should not shy away from standing up for their rights when organizations, foundations, or individuals who have greater financial resources use that to intimidate the creator of the work with the legal costs of protecting their copyright.”

The case has been hotly debated, with much support for each side. Some support Andy Warhol's right to artistic expression through "appropriation art." This kind of art builds on an existing work of art and alters it in a transformative way.

On the other hand, Lynn Goldsmith's proponents believe that artists deserve rights and protections under copyright registration laws. This is especially true if someone uses their work in a substantive way for their own benefit.

Lynn Goldsmith echoes this in her statement:

“If an artist wants to use another artist's work, get permission if it is copyrighted, and if it is in the public domain, then it's fine to take it without permission. With this SCOTUS decision, we have a stronger, clearer definition of what is 'fair use.' I am elated to be of help to artists now and in the future.”

The Supreme Court's decision is being heralded as a landmark judgment. It's essential for many, from small business owners, independent creators, and artists to AI systems trained on existing artworks. But only time will tell what impact this ruling will have on the creative landscape and copyright protection.