Warhol Foundation Loses Supreme Court Case Over Prince Photo (2)

The US Supreme Court ruled in favor of a photographer who says Andy Warhol violated her copyright by using her work to create 16 images of the musician Prince.

Voting 7-2, the justices rejected arguments from the foundation that holds Warhol’s rights in a clash centering on the use of one of the images on a Conde Nast magazine cover. The foundation argued that the images transformed rock-and-roll photographer Lynn Goldsmith’s 1981 portrait of Prince, making them “fair use” under federal copyright law.

The decision could impose new burdens on makers of follow-on works, making it more likely they will have to get a license before selling their creations. The ruling could affect copyrights on music, videos and books, as well as Warhol’s pop art.

“Prince” by Lynn Goldsmith (1981) and “Prince Series” by Andy Warhol (1984)

Writing for the court, Justice Sonia Sotomayor pointed to the commercial use of Warhol’s image as a key factor in determining that he hadn’t engaged in fair use. She rejected the foundation’s contention that Warhol had transformed Goldsmith’s work, saying the photo and the image licensed to Conde Nast “share substantially the same purpose.”

“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Sotomayor wrote.

Dissenting Justice Elena Kagan blasted the ruling.

“If Warhol does not get credit for transformative copying, who will?” Kagan wrote in an opinion joined by Chief Justice John Roberts. She said the ruling will “stifle creativity of every sort” and “impede new art and music and literature.”

In a concurring opinion, Justice Neil Gorsuch left open the possibility that the Prince images could claim fair-use protection in other contexts.

“If, for example, the foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use,” Gorsuch wrote in an opinion joined by Justice Ketanji Brown Jackson.

Four of the 16 images are in the Andy Warhol Museum in Pittsburgh, and 12 have been sold to collectors and galleries, according to Sotomayor.

Vanity Fair

Warhol created the images in 1984 as part of a project for Vanity Fair magazine, which paid Goldsmith a $400 licensing fee so he could use her black-and-white photo as an “artist’s reference.” Warhol created 16 images that gave his subject what the foundation called “a flat, impersonal, disembodied, mask-like appearance.”

Vanity Fair published one image in the 1984 issue. Warhol died three years later, and his copyrights were transferred to the Andy Warhol Foundation for the Visual Arts.

Litigation erupted after Vanity Fair parent Conde Nast in 2016 paid the foundation $10,250 to run a different image from the Prince series in a magazine commemorating his death, without giving Goldsmith any additional payment or credit.

Goldsmith’s lawyer said Warhol and the foundation should have been required to get a license from the photographer for all uses of her photo. A federal appeals court sided with her, rejecting the foundation’s “fair use” defense.

The Biden administration backed Goldsmith, urging not to protect the foundation’s commercial licensing of the Prince image. The images are now worth large sums of money, with one selling for $173,664 in 2015.

The case is Andy Warhol Foundation v. Goldsmith, 21-869.

(Adds excerpts from Sotomayor, Gorsuch, Kagan opinions starting in fourth paragraph.)

--With assistance from Emily Birnbaum.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Steve Stroth

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