Andy Warhol copyright case goes to US Supreme Court
The long-running copyright dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation for the Visual Arts (AWF) will be taken to the US Supreme Court on October 12th. The case will determine whether Andy Warhol‘s Prince series, which was based on a photograph taken by Goldsmith in 1981, transformed the original image enough to avoid liability for infringement.
In 2021, the Second Circuit federal appeals court rejected a claim by the AWF, which claimed that Warhol’s use of the image was “permitted fair use”. Second Circuit argued that Warhol’s work failed the four required fair use tests, including the “transformativeness” and “purpose and character” tests.
The question now being asked is whether Warhol’s work adequately changes the “meaning or message” of the original. Second Circuit believe that Warhol’s artworks are recognisably derived from Goldsmith’s portrait; however, they said that the work must contain “more than the imposition of another artist’s style”. They argued that a work cannot just turn on the artist’s “stated or perceived intent” or “the meaning or impression” that someone gains from it. If this was the case, “any alteration” could be recognised as “transformative” under US law.
Vanity Fair paid Goldsmith $400 to use her photograph as an artist reference for an illustration in 1984, but “no other usage”. Yet, Warhol created 15 more artworks based on her photograph without her knowledge. The artist died in 1987, meaning the AWF were now in charge of his works. The AWF licensed one of the Prince images to Vanity Fair‘s parent company Conde Nast for $10,250, which Goldsmith believes should’ve been paid to her.
The Supreme Court is now being asked by the AWF to overturn Second Circuit’s opinion, claiming that Warhol’s images clearly change the meaning and message of the original – whereas Goldsmith shows “humanity” on Prince’s face, Warhol made him into an “iconic, larger-than-life figure”.
Goldsmith believes that because of the AWF’s licensing, she can no longer license the image to the magazine if she chooses. She continued by stating that the “meaning or message” test is “manipulable.” Furthermore, this would “inject instability into multi-billion-dollar licensing markets,” adding: “artists, critics, and the public often disagree about what art signifies”.
