Court rules against Warhol Foundation on copyright

The US Supreme Court ruled 7-2 against the Foundation Andy Warhol on the question of whether Warhol's use in his own work of a photograph of the musician Prince by Lynn Goldsmith constitutes fair use. The ruling had been hotly anticipated following the October 12, 2022 hearing of the case, which Goldsmith originally launched six years ago in upstate New York.

Goldsmith alleged that the late pop artist illegally used his 1981 photo of the Royal Purple One in his 1984 "Prince Series," a series of sixteen canvas prints featuring the rock icon's face. Warhol created the series while working for Vanity Fair, whose parent company, Conde Nast, licensed Goldsmith's photo for single use, paying $400 for it. A single work from the series, Purple Fame, appeared in the magazine and the photographer was credited. . According to Goldsmith, Warhol did not ask permission to use his photo for the sixteen-part series, nor did he offer credit or reward. She was moved to sue when, after Prince's untimely death in 2016, Vanity Fair published another work in the series, Orange Prince, in a commemorative edition, paying the Warhol Foundation $10,000 for the privilege but failing to credit or compensate Goldsmith.

A New York federal district judge originally ruled in favor of Warhol on the grounds that the pop artist's work was sufficiently transformative and therefore fell into the realm of "fair use." Goldsmith appealed and was allowed to proceed with the lawsuit. "The judge should not assume the role of an art critic and seek to ascertain the intent behind or meaning of the works in question," wrote Justice Gerard Lynch of the US Supreme Court. "This is because judges are typically inadequate to make aesthetic judgments and because such perceptions are inherently subjective."

Writing for the majority, Supreme Court Justice Sonia Sotomayor noted that "Lynn Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists."

In a statement provided to Artforum, Warhol Foundation President Joe Wachs said: “We respectfully disagree with the Court's decision that the licensing of Orange Prince in 2016 was not protected by the fair use doctrine. At the same time, we welcome the Court's clarification that its decision is limited to this single licensing and does not call into question the legality of the creation of the Prince Series by Andy Warhol in 1984. Going forward, we will continue to defend the artist's rights to create transformative works under the Copyright Act and the First Amendment.”

The case has been closely followed, as it is expected to have wide repercussions for artists whose works revolve around appropriation. The ruling comes just days after a court ruled that two lawsuits against famed appropriation artist Richard Prince could proceed. These cases involve Prince's unauthorized use of Instagram photographs and also focus on issues of transformation and fair use.