Andy Warhol is one of the world’s most well-known modern artists. From his Campbell’s Soup Cans to his Marilyn Diptych, his modern culture and media images left an indelible stamp on the art world and American culture. While Warhol is known for taking his inspiration from modern pop culture, a lawsuit against the artist brings up a long-running debate about where the line between art and appropriation lies in copyright law.

In the 1980s, Andy Warhol created a series of silkscreens from a photo of Prince taken by photographer Lynn Goldsmith in 1981. Goldsmith licensed the black and white photo to Vanity Fair as an “artist reference,” and Vanity Fair then commissioned Warhol to create an illustration for an article titled “Purple Fame.” The series eventually contained 12 silkscreen paintings, two drawings, and two screenprints on paper. Millions have seen the striking, colorful images of a young and vulnerable Prince, but the photographer wasn’t aware of Warhol’s silkscreen series until Prince died in 2016. Andy Warhol died in 1986, so Goldsmith brought a copyright suit against the Andy Warhol Foundation for Visual Arts, which owns Warhol’s work.

Copyright and Fair Use

While U.S. copyright law protects the rights of photographers and all artists to their original work, there are exceptions where someone may use copyrighted materials without the original artist’s permission. The “fair use doctrine” is one of these exceptions, allowing the use of copyrighted materials for criticism, commentary, news reports, teaching, and more.

To determine whether the use of something copyrighted falls under “fair use,” the courts will typically balance the rights of the copyright holder with the rights of the public. The court’s examination will include four factors:

• Purpose and character: If the work is used for teaching or research, the analysis may be more likely to tip in favor of fair use than a commercial purpose.
• Nature of the work: The more creative the original, the less likely the analysis will tip in favor of fair use.
• Amount of the work used: How much of the original work is incorporated into the new work will affect the analysis.
• Market effect: Finally, the analysis will look at how the intended use will affect the market for the original work.

The Court Case

In the district court, the judge found in favor of the Warhol Foundation, finding that the Prince series was in “stark contrast” to the original black and white photo, transforming Prince from a photograph of a vulnerable person to a larger-than-life icon. The colorful series is instantly recognized as a Warhol. The judge held that Warhol changed the original artwork so much that it reflects the opposite mood of Goldsmith’s original photo. His ruling stated that Warhol’s works “add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed.”

On appeal, the U.S. Court of Appeals for the 2nd Circuit disagreed with the district court judge. In its ruling in favor of the photographer, Goldsmith, it stated, “Nothing in [the panel’s] opinion stifles the creation of art that may reasonably be perceived as conveying a new meaning or message, and embodying a new purpose, separate from its source material.”

The Warhol Foundation requested that the U.S. Supreme Court hear its appeal in a Writ of Certiorari. In its brief, the Warhol Foundation noted that the 2nd Circuit’s ruling “casts a cloud of legal uncertainty over an entire genre of visual art,” including many artworks included in Warhol’s pop-art genre.

What Happens Next?

Last month, the U.S. Supreme Court agreed to hear the Warhol Foundation’s appeal of the 2nd Circuit’s decision. While Warhol probably should have purchased rights to use the photos to be safe, hindsight is always 20/20. Warhol is notorious for turning well-known imagery into iconic pop art. With the Supreme Court set to rule on whether Warhol’s use of the Prince series is “fair use” under U.S. copyright law, the art and intellectual property worlds will be watching closely.

If you have questions about intellectual property law concerning your business, the experienced IP and business attorneys at Earp Cohn, PC, may be able to help. Call Carrie Ward at (856) 354-7700 or cward@earpcohn.com.