For months, the art world has been anxiously awaiting for the Supreme Court to render a verdict in the closely followed case of Andy Warhol Foundation for the Visual Arts against Lynn Goldsmith. Today, the judges ruled seven to two in favor of the photographer, concluding that a portrait of Andy Warhol infringed his copyright for his original photograph of the late musician Prince.
“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Judge Sonia Sotomayor wrote in the majority opinion.
Chief Justice John Roberts and Justice Elena Kagan were alone in their dissent, CNN reported, writing that the decision “will stifle creativity of all kinds. This will prevent new art, music and literature. It will hinder the expression of new ideas and the acquisition of new knowledge. It will make our world poorer.
Warhol created a series of 14 serigraphs and two pencil drawings in 1984, each based on an unpublished image Goldsmith took the young Prince in 1981 on a mission to Newsweek. Condé Nast had paid the photographer $400 for a one-time use of her image as a “reference artist” for Warhol’s illustration in the “Purple Fame” article.
Right: Original photograph by Lynn Goldsmith of Prince; left: Andy Warhol orange prince
The lawsuit surrounding the work exploded after Prince’s death in 2016, when vanity lounge publishes a special commemorative issue in his honor. On the cover, the magazine displayed a second portrait of Warhol from the series, titled orange princepaying the late artist’s foundation $10,000 for the use.
Goldsmith was not paid or credited, but she acknowledged her work. It was her first time learning about the pop artist’s Prince series, and she immediately feared it might violate her copyright.
“I am thrilled with today’s decision and grateful to the Supreme Court for hearing our side of the story,” Goldsmith’s attorney, Lisa Schiavo Blatt of Williams and Connolly, told Artnet News in an email. “It’s a great day for photographers and other artists who make a living by licensing their art.”
Illustration of Andy Warhol’s Prince based on Lynn Goldsmith’s photograph as it appeared in vanity loungehere reproduced in court documents.
The case was something of a David vs. Goliath battle, with Goldsmith – who actually thwarted the foundation for infringement after seeking a declaratory judgment that the portrait was fair use – launching a GoFundMe to cover what she estimated in 2019 to be $2.5 million in legal fees.
But there were plenty of artists and creatives, including the conceptual collagist and the graphic designer Barbara Kruger, who believed that Warhol’s portrait was fair use and that to decide otherwise could have a chilling effect on artistic creativity. On the other hand, the US Copyright Office sided with Goldsmithsubmitting a amicus brief to the court’s warning that failing to protect its copyright could open the door to rampant copying.
The decision appears to have focused on “the purpose and character” of the two works in question. The court found that the original photograph of Goldsmith and the portrait of Warhol served the same purpose, as magazine illustrations, with commercial use. Actually, People had also published a Prince memorial magazine and had paid Goldsmith $1,000 to have his photo featured on the cover.
Lynn Goldsmith will continue her legal battle against the Andy Warhol Foundation. Photo courtesy of Lynn Goldsmith.
The ruling cautions that this interpretation “does not mean that all derivative works of Warhol, or all uses thereof, attract the same fair use analysis,” but it does tighten the bounds of fair use going forward. .
“We respectfully disagree with the court’s decision that the 2016 license of orange prince was not protected by the doctrine of fair use,” foundation president Joel Wachs told Artnet News in an email. “At the same time, we welcome the court’s clarification that its decision is limited to this license only and does not question the legality of Andy Warhol’s creation of the Prince series in 1984.”
“I think it’s a significant contraction of where the court was,” New York University law professor Amy Adler, who had contributed to a amicus brief of art law professors in support of the Warhol Foundation, told Artnet News. “I think this is going to significantly limit the amount of borrowing and building on previous works that artists will engage in. The court seems less interested now in the artistic contribution of the second work and much more interested in commercial concerns .”
Initially, the district court had ruled in favor of the foundation, stating that Warhol had transformed Goldsmith’s photography, giving him new meaning as a celebrity icon. The Court of Appeals for the Second Circuit overturned this decision, insisting that “the district judge should not assume the role of art critic”. Now the call to SCOTUS has settled the matter once and for all.
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