The Supreme Court on Wednesday will consider whether the late Andy Warhol violated a photographer’s copyright when he created a series of screenprints of musician Prince.
The case marks a rare foray into the world of fine art by the court and has drawn the attention of those in the art world who say a Court of Appeals decision against Warhol challenges the legitimacy of generations of artists who have moved on from already existing works inspired .
Museums, galleries, collectors and experts have also asked the judiciary to bring copyright law into line with the First Amendment in a way that protects artistic freedom.
At the heart of the case is the so-called “fair use” doctrine in copyright law, which allows unlicensed use of copyrighted works under certain circumstances.
In the present case, a district court ruled in favor of Warhol, basing its decision on the fact that the two works in question had a different meaning and message. However, an appeals court reversed and ruled that a new meaning or message was insufficient to qualify for fair use.
Now the Supreme Court has to come up with the real test.
“Fair Use protects the First Amendment rights of both speakers and listeners by ensuring that those whose speech involves a dialogue with pre-existing copyrighted works are not prevented from sharing that speech with the world,” a group of art law professors supporting the Andy Warhol Foundation said the judges in court filings.
Lawyers for the Warhol Foundation claim that the artist created the “Prince Series” – a series of portraits that transformed a pre-existing photograph of the musician Prince – to comment on “celebrity and consumerism”.
They said that in 1984, after Prince had become a superstar, Vanity Fair hired Warhol to create an image of Prince for an article titled “Purple Fame.”
At the time, Vanity Fair licensed a black-and-white photograph taken by Lynn Goldsmith in 1981, when Prince was not well known. Goldsmith’s image was intended to be used by Warhol as an artist reference.
Goldsmith – who specializes in portraits of celebrities and makes money from licensing – originally took the picture on behalf of Newsweek. Her photos of Mick Jagger, Bruce Springsteen, Bob Dylan and Bob Marley are all part of the court record.
Vanity Fair published the illustration from her photograph—one full page and one quarter page—accompanied by an attribution. Little did she know that Warhol was the artist for whom her work would serve as a reference, but she received a $400 royalty. The license stated “no further rights of use granted”.
Unbeknownst to Goldsmith, Warhol created 15 other works based on her photograph. Sometime after Warhol’s death in 1987, the Warhol Foundation acquired ownership and copyright of what became known as the “Prince Series.”
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In 2016, after Prince’s death, Conde Nast, Vanity Fair’s parent company, published a tribute with a work from Warhol’s Prince series on the cover. No credit or attribution was given to Goldsmith for the image. And she received no payment.
Upon learning of the series, Goldsmith recognized her work and contacted the Warhol Foundation to notify them of copyright infringement. She registered her photo with the US Copyright Office.
The Warhol Foundation – believing that Goldsmith would sue – asked the courts for a “declaration of non-infringement”. Goldsmith countered with a copyright infringement lawsuit.
A district court ruled in favor of the Warhol Foundation, concluding that using the photo without permission and without a fee constituted fair use.
Warhol’s work is “transformative,” the court said, because it conveys a different message than Goldsmith’s original work. It noted that the Prince series “can reasonably be perceived as having transformed Prince from a vulnerable, awkward person into an iconic, larger-than-life character.”
However, the 2nd US Circuit of Appeals reversed course and said use of the images did not necessarily fall under fair use.
The appeals court said the district court wrongly assumed the “role of art critic” and based its fair use test on the importance of the artistic work. Instead, the court should have examined the degree of visual similarity between the two works.
Under that standard, the court held, the Prince series was not transformative, but “substantially similar” to the Goldsmith photo and therefore not protected by fair use.
It justified its decision by saying that a secondary work, even if it adds ‘new expression’ to source material, can be exempted from fair use. The Court of Appeals said that the secondary work’s use of the original source material must have a “fundamentally different and new” artistic purpose and character “so that the secondary work differs from the raw material from which it was created.” The court emphasized that the major work need not be barely recognizable within the subsidiary work, but that it must at least “encompass something more than imposing another artist’s style on the major work”.
The court said the “overarching purpose and function” of the Goldsmith photograph and the Warhol prints were identical because they were “portraits of the same person.”
“Crucially, the Prince series retains the essential elements of the Goldsmith photograph without materially adding to or altering those elements,” the court concluded.
Appealing on behalf of the Warhol Foundation, attorney Roman Martinez argued that the Court of Appeals made a serious error in forbidding courts to consider the work’s importance as part of a fair use analysis.
He warned the court that if it accepted the appeals court’s reasoning, established copyright principles would be turned on their head and creativity and expression “at the heart of the First Amendment” would be stifled.
According to Martinez, copyright is designed to encourage innovation and sometimes builds on the achievements of others.
Martinez emphasized that the fair use doctrine — “dating back at least as far as the 19th century” — reflects the recognition that rigid application of copyright law would “stifle the very creativity that that law was intended to encourage.”
He noted that Warhol’s work can currently be found in collections around the world, including the Museum of Modern Art in New York, the Smithsonian Collection and the Tate Modern in London. From 2004 to 2014, Warhol’s auction sales totaled over $3 billion.
Martinez said Warhol made significant changes, cropping and resizing Goldsmith’s image, changing the angle of Prince’s face, while altering tones, lighting and detail.
“While Goldsmith portrayed Prince as a vulnerable human being, Warhol made significant changes that erased humanity from the picture to comment on societal perceptions of celebrities as products rather than people,” argued Martinez, adding, “The Prince series is so transformative.”
Lisa Blatt, an attorney for Goldsmith, told the judges a very different story.
“The Copyright Act 1976 contains a long-standing promise to all creators: create innovative works, and copyright guarantees you the right to control if, when and how your work is viewed, distributed, reproduced or adapted,” she wrote.
She said authors and multibillion-dollar licensing industries “rely on that premise.”
She said the Andy Warhol Foundation should have paid Goldsmith’s copyright fees. Blatt argued that Warhol’s work was almost identical to Goldsmith’s.
“Fame isn’t a ticket to trampling on other artists’ copyrights,” she said.
The Biden administration supports Goldsmith in the case.
Attorney General Elizabeth Prelogar, for example, noted that book-to-film adaptations often introduce new meanings or messages, “but this has never been considered an independently sufficient justification for unauthorized copying.” She said Goldsmith’s ability to license her photo and earn royalties was “undermined” by the Warhol Foundation.
The Art Institute of Chicago and other museums told the court that the appeals court’s decision created uncertainty not only for the artworks themselves, but also for the market for copies of works the museum makes through catalogs, documentation, and websites.
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The museums’ attorneys also noted that the lower court’s ruling “failed to take into account” long-standing artistic traditions of using elements of pre-existing works in new works, and asked the Supreme Court to reconsider the appeals court’s ruling.
For example, during the Baroque period, Giovanni Panini painted modern Rome (depicted in court records) and depicted a gallery of famous art. Copies of pre-existing works are included, including Michelangelo’s Moses, Gian Lorenzo Bernini’s Statutes of Constantine, David, Apollo and Daphne, and his Fountains in Piazza Navona. Contemporary artists also continue to use existing artworks, the museums argued. Street artist Banksy, for example, painted a piece of “Girl with a Pierced Eardrum” on a building in Bristol. It was based on the 1665 masterpiece The Girl with a Pearl Earring by Johannes Vermeer.
“All of these works would not be considered transformative under the Second’s Circuit approach,” the museums argued.