In the never-ending Warhol/Goldsmith “Prince photo” case, the Supreme Court ruled in favor of the photographer. The judges decided that Andy Warhol violated Lynn Goldsmith’s copyright when he made his famous “Prince” series and rejected the argument that Warhol’s work was different enough to be considered fair use.
Back in 1981, photographer Lynn Goldsmith captured the iconic image of Prince. Fast forward three years, Andy Warhol used this photo as a basis for creating a series of new pieces, claiming he drew “inspiration” from the original image (you be the judge). 30 years later, the photographer claimed that Warhol crossed the line of infringing upon her original creation, and the legal saga began. But it was not with her lawsuit!
The legal battle history
As Goldsmith told the NY Daily News at the time, Warhol didn’t only draw inspiration from her work, but it was a downright copyright infringement. Consequently, the estate of Andy Warhol took legal action against the photographer in 2017. They launched a preemptive strike and sued the photographer to preemptively safeguard against any potential future legal disputes she might raise.
“Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol’s works were entirely new creations, the Estate attorney Luke Nikas argued. “As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”
In March 2021, the Estate lost the legal battle against Goldsmith. Judge Gerard E. Lynch said the Prince Series “retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements.” Simply put, we can’t classify it as a transformative creation (which would fall under fair use).
But wait, there’s more. The US Copyright Office weighed in later in 2021. The case was scheduled for a hearing in October 2021, and the US Copyright Office submitted an amicus brief ahead of it. It backed up the claim that the “inspiration” doesn’t fall under fair use and is, in fact, copyright infringement.
Finally, we get to the current state of this never-ending legal saga. The Supreme Court ruled on Thursday, April 18, 2023, that Andy Warhol indeed infringed on Goldsmith’s copyright when he created his “Prince” series. The court dismissed the claims of the Andy Warhol Foundation’s lawyers that his work was transformative enough to avoid copyright concerns. Not all the judges shared this opinion, but the majority vote ruled in favor of the photographer.
“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Justice Sonia Sotomayor wrote in the majority opinion. She said that “fair use” shouldn’t apply to Warhol’s image “Orange Prince.”
“If an original work and a secondary use share the same or highly similar purposes, and they are both used in a commercial nature, it is unlikely that ‘fair use’ applies,” Sotomayor said, according to CNN.
Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, commented on the decision:
“Although the majority opinion focuses on only one of the four factors courts are supposed to apply in determining when works of art can be fairly used by others, there’s little question that the majority opinion will have a major impact on these kinds of reproductions – making it harder for artists to repurpose the works of others even with meaningful differences (and not just reproduce them), without their permission.
Indeed, whether one thinks Justice Sotomayor’s majority opinion or Justice Kagan’s dissent has the better of the legal arguments, it’s hard to disagree with Kagan that such an approach could ‘stifle creativity’ across a range of artistic media – and that perhaps Congress ought to revisit whether this is the best outcome.”
As expected, the Andy Warhol Foundation disagreed with the court’s decision. However, it “welcomed the majority’s clarification that its decision is limited to that single licensing and does not question the legality of Andy Warhol’s creation of the Prince Series in 1984.”
“Going forward, we will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment,” Joel Wachs, the foundation’s president, said in a statement.
Justice Elena Kagan argued that the opinion will “stifle” every sort of creativity. “Both Congress and the courts have long recognized that an overly stringent copyright regime actually stifles creativity by preventing artists from building on the works of others,” she wrote in her dissent.
“Artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.”
What it means
As Goldsmith’s lawyer Lisa Blatt wrote in court papers, “Fame is not a ticket to trample other artists’ copyrights.” This decision can have positive implications for all photographers whose copyright has been infringed because someone was, ahem, “inspired” by their work.
But with the swift development of AI-generated work, I think we have plenty of new problems to tackle.
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