Supreme Court Takes on Warhol Copyright Case

The US Supreme Court has agreed to hear an appeal in one of the most important copyright cases in recent years.

On March 25, the Court agreed to consider whether Andy Warhol’s “Prince Series” of prints, based on a 1981 photograph of the late musical artist Prince by Lynn Goldsmith, is “transformative” enough to qualify for the Copyright Act’s fair use defense.

As we explained in this blog last year,

The photographer, Lynn Goldsmith took photos of Prince in 1981, early in his career. In 1984, she licensed the photos to Vanity Fair magazine as reference art for an illustration for an article about Prince.

Goldsmith didn’t know at the time that the artist creating the illustrations for Vanity Fair was pop artist Andy Warhol.

After Prince died in 2016, Goldsmith learned that Warhol (who had also since died) had used her photo of Prince – without her permission -- to create a series of fifteen silkscreen prints (the “Prince Series”). She notified the Andy Warhol Foundation for the Visual Arts, Inc. ("AWF"), successor to Warhol's copyright in the Prince Series, that she believed the series violated her copyright in the photo.

The lower court concluded that the Warhol works were “transformative” and thus were allowed under the doctrine of “fair use.” As we explained,

Courts consider four main factors in determining whether the unlicensed use of a copyrighted work is “fair use”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The court of appeals disagreed with the district court, finding that

Though it may well have been Goldsmith's subjective intent to portray Prince as a "vulnerable human being" and Warhol's to strip Prince of that humanity and instead display him as a popular icon, whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic — or for that matter, a judge — draws from the work.

The AWF filed a Petition for Writ of Certiorari with the Supreme Court. It argued that the Second Circuit’s decision conflicted with Supreme Court precedent that “fair use” only required that a new work had a different meaning or message than the original version.

Goldsmith opposed the Petition, arguing that the Second Circuit “faithfully applied the Supreme Court’s test for transformativeness,” which requires that “the work must have a new purpose or character, to such an extent that the new work alters the original” but that the “Prince Series” failed that test.

The case will likely be argued before the Supreme Court by the end of this year, and a decision is expected by summer of next year.