The Supreme Court recently ruled on a copyright dispute between the late Andy Warhol and photographer Lynn Goldsmith.
In a 7-2 decision, the Court ruled that Warhol’s silkscreen portraits of the legendary musician Prince were not protected under the fair use doctrine of copyright infringement. Warhol’s estate argued that the artist had substantially “transformed” Goldsmith’s photo and was therefore entitled to use the revised work as it saw fit. The Court disagreed and ruled in Goldsmith’s favor.
If you think this case sounds familiar, you are right; I wrote about it here last month, prior to this latest decision from the Supreme Court.
I noted then that “the art and intellectual property worlds [would] be watching closely,” given Warhol’s massive collection of iconic pop art, and sure enough, this decision has ruffled a few feathers. But was it really a blow to the fair use doctrine?
That all depends on your perspective.
The case stems from a set of silkscreen portraits created by Warhol and based specifically on a photograph Goldsmith took of Prince in 1981. Vanity Fair originally licensed the photograph in 1984 and then commissioned Warhol to create the silkscreen version for an article about the musical icon, published in the magazine that same year. Warhol’s efforts produced a total of twelve silkscreen paintings, two drawings, and two screen prints on paper. Just one of the silkscreens was used for the magazine’s article, and Vanity Fair paid Goldsmith $400 to acknowledge her contribution, noting the photograph was the “source” of Warhol’s creation.
And that was the end of that.
But in 2016, Prince passed away, and the Andy Warhol Foundation for Visual Arts (now the owner of Warhol’s collective works) used another image from the Prince series. In exchange for a payment of $10,000, the Foundation granted Vanity Fair’s parent company, Condé Nast, the right to include the image in a special issue commemorating the artist’s life.
Goldsmith was not mentioned in or paid for this new depiction, sparking the lawsuit that brought us here.
When the district court previously found in favor of the Warhol Foundation, it referred to Warhol’s transformation of the original work, a key element in the fair use doctrine and a standard that the courts utilize to measure the amount of original and creative alteration that justifies a fair use defense.
In this case, Warhol’s creations were in “stark contrast” to Goldsmith’s photo. Where the original image was black-and-white, presenting Prince as “vulnerable” and “uncomfortable,” Warhol had applied what the district judge called “loud, unnatural colors,” completely changing the feel of the work and the emotions it portrayed.
But instead of focusing on this level of transformation, the Supreme Court looked more at how the image was used and relied on this distinction to form its ruling.
Remember, there are four factors to be considered in the fair use doctrine, one of which is the “purpose and character of the use.” This incorporates the “transformative” measure I mentioned above, but it also looks at the work’s purpose – why was it created?
In Warhol’s famous Campbell’s Soup Cans series, for example, the artist sought to depict everyday life. In fact, that was the appeal of the collection, that something so mundane could be considered art, and Justice Sonia Sotomayor references this distinction as an illustration of why the Court ruled the way it did.
The purpose of Campbell’s logo is to advertise soup,” she writes in the majority opinion. “Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup.”
In the dissent, Justice Elena Kagan was joined by Chief Justice John Roberts, calling the Court’s decision one that would “stifle creativity of every sort.”
“If Warhol does not get credit for transformative copying,” Justice Kagan wrote, “who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more.”
Justice Sotomayor said Goldsmith, like other photographers, should have copyright protection, “even against famous artists.”
“The use of a copyrighted work may nevertheless be fair,” she wrote, “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.”
Put simply, the altered print was intended to serve as a “commercial substitute” for the original work. And that is at the heart of this ruling.
In his concurring opinion, Justice Gorsuch is quick to point out the narrow focus of this case and its ramifications.
“This case does not call on us to strike a balance between rewarding creators and enabling others to build on their work,” he writes. “That is Congress’s job.”
“Our only job today is to interpret and apply faithfully one statutory factor among many Congress has deemed relevant to the affirmative defense of fair use.”
What does that mean going forward? We’ll just have to wait and see.