The Supreme Court has ruled artist Andy Warhol violated copyright law with images of the late singer Prince. The dispute involves images created as a commission for Vanity Fair by Warhol in 1984. The artist used photographs of Prince taken by Lynn Goldsmith as a reference point. Vanity Fair paid Goldsmith to license the photo, but when Warhol created his pieces, he did not pay for or acquire any rights to the photos.
Vanity Fair ultimately choose one of these images, Prince with a purple face, to run in the magazine. Then they ran another image from the series after the singer passed away in 2016. This second image is what is being contested in court.
The ruling was 7-2 against Warhol’s work. “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Justice Sonia Sotomayor and six of her colleagues wrote.
Lawyers for The Andy Warhol Foundation maintain that the silk-screened pieces transformed the work enough that they don’t violate copyright law. Under “fair use” copyright laws some amount of inspiration or borrowing from other artists is allowed. Since, realistically, making a wholly original work of art is almost impossible. The Federal Copyright Act of 1976 does outline four factors to determine if something falls under fair use:
- The Purpose and Character of the Use.
- The Nature of the Copyrighted Work.
- The Amount or Substantiality of the Portion Used.
- The Effect of the Use on the Potential Market for or Value of the Work.
But even with that criteria, rulings like this can still be highly subjective. This is why you have Justices like Elena Kagan arguing that this ruling will “stifle creativity of every sort.”
Kagan believes that the majority overlooked the fact that the silkscreen and photo do not have the same “aesthetic characteristics.” Nor does she feel that they “convey the same meaning.” Instead, her peers only focused on the commercial purpose of the work. Something that “ill serves copyright’s core purpose,” she said.
“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,” Kegan wrote. “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,” she explained. She is of the belief that Warhol’s “eye-popping” interpretation of Prince “dramatically” altered Goldsmith’s photograph.
“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,” Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, said.
“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,” he said.
This ruling will have a major impact on how work is determined to be transformative in the future.
