Montage provided by the Supreme Court featuring images of Goldsmith and Warhol.
The US Supreme Court this Thursday agreed with photographer Lynn Goldsmith, who seven years ago launched a crusade to seek recognition that Andy Warhol violated his copyright by making a series of screenprints based on one taken by Goldsmith picture of the singer Prince made. Beyond the actual litigation, the decision may change the rules of the game of artistic creation by proposing a new scenario in which recourse to a previous work, a practice widespread in contemporary art, can lead to legal consequences.
“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, including from famous artists. Such protection includes derivative works that modify the original,” Judge Sonia Sotomayor writes in the Majority Opinion. Seven judges agreed with this opinion. The other two showed their resistance. Sotomayor believes that both images “serve essentially the same purpose and the use is commercial in nature.” In addition, the Warhol Foundation “did not provide any other convincing justification for the unauthorized use of the photograph.”
The person responsible for writing the dissenting opinion was Liberal Elena Kagan (Supreme Court President Conservative John Roberts was the other judge who concurred with his position). “[La sentencia] It will stifle creativity of all kinds. It will prevent new art, music and literature. It will hinder the expression of new ideas and the acquisition of new knowledge. It will make our world poorer.”
The origin of the dispute dates back to 1981 when Goldsmith photographed Prince for Newsweek, then a rising artist with three notable albums under his belt, but not yet the massive music star he would become in that decade. Three years later, to coincide with the release of the Purple Rain soundtrack, American magazine Vanity Fair commissioned Warhol to produce a series of silkscreen prints and two pencil sketches of the singer, who made history as part of the pop movement in the 1950s. Art based on converting mass culture images into art, such as a box of Brillo detergent or a can of Campbell’s soup. Warhol took Goldsmith’s black-and-white image and added color, apparently with a mastery of purple, as had been the case for decades with characters like Jackie Kennedy, Mick Jagger, or Marilyn Monroe.
Vanity Fair then paid the photographer $400 to use some of his work as “reference material.” When Prince died in 2016, the magazine decided to hand the commission over to Warhol (died 1987), paying $10,250 to the Andy Warhol Foundation for the use of another screenprint in the series, the one with an orange background and titled Prince Orange. In doing so, Goldsmith discovered that the artist had, without his knowledge, used his work to create other images. So he sued the Andy Warhol Foundation for granting permission to publish without naming (or compensating) Goldsmith.
Before the case reached the Supreme Court, two conflicting verdicts were handed down. A federal judge ruled in favor of the foundation, concluding that what Warhol did with the source material could be considered “transformative” because, as he wrote in the ruling, it transformed Goldsmith’s portrait into an icon.
A higher court, the New York-based Court of Appeals for the Second Circuit, later ruled in the photographer’s favor after reviewing the case in 2021. Judges criticized the lower judge for portraying himself as an “art critic” with his decision.
The Supreme Court accepted the case to set a precedent for the scope of the “fair use defense,” which allows the use of portions of works protected by intellectual property without the need to seek permission. This use is essential, for example, for literary criticism, which is used to citing passages from the works examined.
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