The United States Supreme Court today ruled 7-2 against the Andy Warhol Foundation for the Visual Arts regarding the question whether Warhol’s use in his own work of a photograph of the musician Prince by Lynn Goldsmith constitutes fair use. The decision was highly anticipated following the Court’s decision of October 12, 2022, audience of the case, which Goldsmith originally started six years ago in New York state.
Goldsmith has alleged that the late pop artist illegally used her 1981 photo of the Royal Purple One in her 1984 ‘Prince series’, a series of sixteen serigraphs featuring the rock icon’s face. Warhol created the series while on a mission to vanity lounge, whose parent company, Conde Nast, licensed Goldsmith’s photo for one-time use, paying him $400. A unique work in the series, purple fame, was published in the magazine and the photographer was credited. According to Goldsmith, Warhol did not ask her permission to use her photo for the sixteen-part series, nor did she offer her any credit or reward. She was brought to sue when, after Prince’s untimely death in 2016, vanity lounge ran another series work, orange princein a commemorative issue, paying the Warhol Foundation $10,000 for the privilege, but failing to credit or compensate Goldsmith.
A judge in the Federal District of New York initially ruled in favor of Warhol on the grounds that the pop artist’s work was sufficiently transformative and therefore fell within the realm of “fair use”. Goldsmith appealed and was allowed to continue with her lawsuit. “The district judge should not take on the role of art critic and seek to determine the intent or meaning of the works in question,” U.S. Court of Appeals Judge Gerard Lynch wrote for the second circuit. “This is so both because judges are generally not adept at making aesthetic judgments and because such perceptions are inherently subjective.”
Writing for the majority, Supreme Court Justice Sonia Sotomayor noted that “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even from famous artists”.
The case has been closely watched, as it is expected to have wide-ranging repercussions for artists whose work is all about appropriation. The decision comes just days after a court ruled that two lawsuits against famed appropriation artist Richard Prince could go ahead. These cases involve Prince’s unauthorized use of Instagram photos and also involve processing and fair use issues.
