US Supreme Court rules against Andy Warhol Foundation in copyright case
The Andy Warhol Foundation for the Visual Arts has lost its copyright lawsuit against a photographer who claimed that Warhol’s reprints of her photography belonged to her.
The Supreme Court of the United States ruled that to avoid copyright infringement, an artist who bases a new work on an earlier one must have a “compelling justification” in order to use the original work where the two works have a highly similar commercial use.
In 1984, celebrity photographer Lynn Goldsmith licensed an image that Warhol created based on Goldsmith’s original pictures of the musician Prince. Goldsmith had granted a one-time use license to Vanity Fair. Under this license, Warhol created the Prince Series, a number of works based on her photographs, including a purple portrait of Prince that appeared in the Vanity Fair article. Goldsmith learned of the Prince Series in 2016 when she saw Warhol’s orange portrait of Prince on a magazine cover.
The court’s 7-2 opinion, written by Justice Sonya Sotomayor, highlighted the fact that the purpose of Orange Prince was largely the same as Goldsmith’s original work. “Both are portraits of Prince used in magazines to illustrate stories about Prince,” the court’s opinion states. AWF’s use was also of a commercial nature, and taken together, the two elements “counsel against fair use here”.
The Court wrote that it saw an “intractable problem” in the Warhol Foundation’s reliance on a “meaning or message” test. “Because AWF’s commercial use of Goldsmith’s photograph to illustrate a magazine about Prince is so similar to the photograph’s typical use, a particularly compelling justification is needed,” the court writes. “Yet AWF offers no independent justification, let alone a compelling one,” and “that alone is not enough for the first factor to favour fair use”.
“It will not impoverish our word to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work,” the majority opinions read.
In a statement, Goldsmith said that she was “thrilled by today’s decision and thankful to the Court for hearing our side of the story. This is a great day for photographers and other artists who make a living by licensing their art.”
Joel Wachs, president of the AWF, said in a statement that the foundation “respectfully disagree[s] with the Court’s ruling that the 2016 licensing of Orange Prince was not protected by the fair use doctrine. At the same time, we welcome the Court’s clarification that its decision is limited to that single licensing and does not question the legality of Andy Warhol’s creation of the Prince Series in 1984. Going forward, we will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment.”
