Supreme Court rules against Warhol Foundation

From The Washington Post.

Prince, photographed by Lynn Goldsmith in 1981

The Supreme Court on Thursday sided with a photographer who claimed the late Andy Warhol should have honored her copyright on a photo of the rock star Prince when creating an iconic artistic image of the late singer.

Justice Sonia Sotomayor wrote for the court majority in the 7-2 decision, which legal experts said could carry far-reaching implications for copyright protection and so-called transformative art. 

The issue is the legal doctrine called “fair use,” which encourages artistic expression by allowing for the use of protected works without the original creator’s permission.

But Sotomayor wrote that an important factor to consider is whether the copying work comes with a competing commercial purpose. 

Both photographer Lynn Goldsmith and the Andy Warhol Foundation were selling their images to magazines.

“Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature,” Sotomayor wrote. 

“AWF has offered no other persuasive justification for its unauthorized use of the photograph.”

The case now returns to a lower court, where Goldsmith can press for damages.

The justices were considering whether the estate of Warhol, who died in 1987, violated copyright law by selling to Vanity Fair magazine an illustration based on a silk-screen portrait of Prince. 

The image was derived from Goldsmith’s photo of the musician, but it was used without her permission, credit or payment.

A federal district judge in New York said Warhol’s work created something new, a transformation within the “fair use” exception to the law. 

But the U.S. Court of Appeals for the 2nd Circuit said Goldsmith could press her claim and warned that judges should stay in their lanes.

“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” the court said. 

“That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

Goldsmith took the portrait of Prince in the early 1980s. 

Vanity Fair commissioned Warhol to create an illustration for a 1984 article on Prince and obtained a license from Goldsmith, paying her $400 so Warhol could use the photo as an artistic reference. 

He changed certain aspects of the photo and created for the magazine what is now called “Purple Fame.” 

Warhol also created 16 silk-screens called the Prince Series, some of which are owned by private collectors and others of which hang in museums.

When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, paid more than $10,000 to the Warhol Foundation for another version, Orange Prince, to illustrate a commemorative magazine. 

When Goldsmith complained she had not been paid for her photo, the foundation sued her, and a legal battle began.