The U.S. Supreme Court will review a copyright dispute over a series of paintings by Andy Warhol that relied on existing photos of Prince as a template to decide whether the meaning of art can be considered to determine if it’s a new and distinct piece protected under copyright law.
The case will test the reach of the fair use defense to copyright infringement and how courts should evaluate if works based on older versions are meaningfully transformative enough to qualify as a different piece.
On one side is the Andy Warhol Foundation for Visual Arts, which in 2017 sued photographer Lynn Goldsmith for a court declaration that the artist’s 16-part Prince series doesn’t violate her copyright to the photo that inspired them. Warhol had cropped and painted over Goldsmith’s images of Prince to create what he argues are “entirely new creations” that comment on celebrity and consumerism. The works have been displayed in museums, galleries and other public venues.
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On the other side is Goldsmith. When Prince died in 2016, she found that Vanity Fair ran a tribute of the musician with one of Warhol’s images on the cover. She filed counterclaims against the foundation after she threatened to sue if she was not paid for the use of her original photos.
The case has bounced between federal and appellate courts. Most of the disagreement has focused on whether Warhol sufficiently changed Goldsmith’s photo — a key element in determining whether a work qualifies for fair use protection.
A New York federal court sided with Warhol. U.S. District Judge John Koeltl found that the Prince series was “transformative” enough because it incorporated a new meaning and message, distinct from the photo from which it drew. He also emphasized the cultural impact of Warhol’s work, finding that the artist transformed Prince “from a vulnerable, uncomfortable person” that he’s depicted as in the photo “to an iconic, larger-than-life figure.”
“Each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons,” he wrote.
The 2nd U.S. Circuit Court of Appeals took a different stance. Reversing the ruling, it criticized the lower court for assuming the “role of art critic” and seeking to “ascertain the intent behind or meaning of the works at issue.” The three-judge panel directed courts not to make aesthetic judgments because “such perceptions are inherently subjective.”
The 2nd Circuit ultimately found that Warhol’s work wasn’t protected under fair use because it was too similar to Goldsmith’s. While its meaning may be different, Judge Gerard E. Lynch wrote that the original photo remained the “recognizable foundation upon which the Price series is built.”
Attorneys for the Warhol Foundation warn that the ruling, if allowed to stand, will chill artistic and free expression. They say that it “threatens a sea-change in the law of copyright” and that it challenges established precedent that a new work is “transformative” if it has a new meaning or message distinct from that of the pre-existing work.
“The Second Circuit’s rule chills artistic speech by imposing the threat of ruinous penalties on artists who must predict—ex ante—whether their new work will be deemed too ‘recognizable’ to merit fair use protection,” reads the petition. “By the same token, it may now be unlawful for collectors to sell—and museums to display—a large swath of works of art that derive inspiration from other works without fear of draconian consequences.”
The Warhol Foundation points to a case from the 9th U.S. Circuit Court of Appeals in which it found that a work is protected under copyright law if its “new expressive content or message is apparent” even in instances where it “makes few physical changes to the original.”
