Andy Warhol copyright case goes to U.S. Supreme Court


The U.S. Supreme Court will contemplate Wednesday whether or not the late Andy Warhol infringed on a photographer’s copyright when he created a collection of silkscreens of the musician Prince.

The case marks a uncommon foray for the court docket into the world of visible arts and has attracted the eye of these within the artwork world who say an appeals court docket choice towards Warhol calls into query the legitimacy of generations of artists who’ve drawn inspiration from pre-existing works.

Museums, galleries, collectors, and specialists have additionally weighed in asking the justices to stability copyright regulation with the First Amendment in a means that may defend inventive freedom.

Central to the case is the so referred to as “truthful use” doctrine in copyright regulation that allows the unlicensed use of copyright-protected works in sure circumstances.

In the case at hand, a district court docket dominated in favour of Warhol, basing its choice on the truth that the 2 works in query had a special that means and message. But an appeals court docket reversed — ruling {that a} new that means or message just isn’t sufficient to qualify for truthful use.

Now the Supreme Court should give you the right take a look at.

“Fair Use protects the First Amendment rights of each audio system and listeners by guaranteeing that these whose speech includes dialogue with pre-existing copyrighted works are usually not prevented from sharing that speech with the world,” a gaggle of artwork regulation professors who help the Andy Warhol Foundation advised the justices in court docket papers.

Lawyers for the Warhol Foundation contend that the artist created the “Prince Series” — a set of portraits that reworked a pre-existing {photograph} of the musician Prince– so as to touch upon “celeb and consumerism.”

They mentioned that in 1984, after Prince turned a celebrity, Vanity Fair commissioned Warhol to create a picture of Prince for an article referred to as “Purple Fame.”

At the time, Vanity Fair licensed a black and white picture that had been taken by Lynn Goldsmith in 1981 when Prince was not well-known. Goldsmith’s image was to be utilized by Warhol as an artist reference.

Goldsmith — who focuses on celeb portraits and earns cash on licensing — had taken the image initially whereas on project for Newsweek. Her images of Mick Jagger, Bruce Springsteen, Bob Dylan and Bob Marley are all part of the court docket’s report.

Vanity Fair printed the illustration based mostly on her picture — as soon as as a full web page and as soon as as 1 / 4 web page — accompanied by an attribution to her. She was unaware that Warhol was the artist for whom her work would function a reference, however she was paid a US$400 licensing charge. The license acknowledged “no different utilization rights granted.”

Unbeknownst to Goldsmith, Warhol went on to create 15 further works based mostly on her {photograph}. At some level after Warhol’s demise in 1987, the Warhol Foundation acquired title to and copyright of the so-called “Prince Series.”

In 2016, after Prince died, Conde Nast, Vanity Fair’s guardian firm, printed a tribute utilizing considered one of Warhol’s Prince Series works on the quilt. Goldsmith was not given any credit score or attribution for the picture. And she obtained no fee.

Upon studying in regards to the collection, Goldsmith acknowledged her work and contacted the Warhol Foundation advising it of copyright infringement. She registered her picture with the U.S. Copyright Office.

The Warhol Foundation — believing that Goldsmith would sue — sought a “declaration of noninfringement” from the courts. Goldsmith countersued with a declare of copyright infringement.

A district court docket dominated in favour of the Warhol Foundation, concluding that using the {photograph} with no permission and no charge constituted truthful use.

Warhol’s work was “transformative,” the court docket mentioned, as a result of it communicated a special message from Goldsmith’s authentic work. It held that the Prince Series can “moderately be perceived to have reworked Prince from a susceptible, uncomfortable individual to an iconic, larger-than-life determine.”

The 2nd US Circuit Court of Appeals nevertheless, reversed and mentioned that using the photographs didn’t essentially fall beneath truthful use.

The appeals court docket mentioned the district court docket was fallacious to assume the “function of artwork critic” and base its take a look at for truthful use on the that means of the inventive work. Instead, the court docket ought to have appeared on the diploma of visible similarity between the 2 works.

Under that normal, the court docket mentioned, the Prince Series was not transformative, however as a substitute “considerably comparable” to the Goldsmith {photograph} and subsequently not protected by truthful use.

It based mostly its ruling on the truth that a secondary work, even when it provides “new expression” to a supply materials, may be excluded from truthful use. The appeals court docket mentioned the secondary work’s use of the unique supply materials has to have a “essentially completely different and new” inventive objective and character “such that the secondary work stands other than the raw materials used to create it.” The court docket emphasised that the first work doesn’t have to be barely recognizable inside the secondary work, however that at a minimal it should ” comprise one thing greater than the imposition of one other artist’s type on the first work.”

The court docket mentioned that the “overarching objective and performance” of the Goldsmith picture and the Warhol prints is an identical as a result of they’re “portraits of the identical individual.”

“Critically, the Prince Series retains the important components of the Goldsmith Photograph with out considerably including to or altering these components, ” the court docket concluded.


In interesting the case on behalf of the Warhol Foundation, lawyer Roman Martinez argued that the appeals court docket had gone badly fallacious by forbidding courts from contemplating the that means of the work as part of a good use evaluation.

He warned the court docket that if it had been to embrace the reasoning of the appeals court docket, it could upend settled copyright ideas and chill creativity and expression “on the coronary heart of the First Amendment.”

According to Martinez, copyright regulation is designed to foster innovation and generally builds on the achievements of others.

Martinez harassed that the truthful use doctrine — “which dates again no less than to the nineteenth century” — displays the popularity {that a} solid software of the copyright statute would “stifle the very creativity which that legal guidelines was designed to foster.”

He famous that Warhol’s works are at present present in collections internationally, together with the Museum of Modern Art in New York, the Smithsonian assortment and the Tate Modern in London. From 2004 by means of 2014 Warhol public sale gross sales exceeded $3 billion.

Martinez mentioned Warhol made substantial modifications by cropping Goldsmith’s picture, resizing it, altering the angle of Prince’s face whereas altering tones, lighting and element.

“While Goldsmith portrayed Prince as a susceptible human, Warhol made important alterations that erased the humanity from the picture, as a means of commenting on society’s conception of celebrities as merchandise, not individuals,” Martinez argued and added, “the Prince collection is thus transformative.”


Lisa Blatt, a lawyer for Goldsmith, advised the justices a really completely different story.

“To all creators, the 1976 Copyright Act enshrines a longstanding promise: Create revolutionary works, and copyright regulation ensures your proper to management if, when and the way your works are seen, distributed, reproduced or tailored,” she wrote.

She mentioned that creators and multibillion-dollar licensing industries “depend on that premise.”

She mentioned that the Andy Warhol Foundation ought to have paid Goldsmith’s copyright charges. Blatt argued that Warhol’s work was virtually an identical to Goldsmith’s personal.

“Fame just isn’t a ticket to trample different artists’ copyrights,” she mentioned.

The Biden administration is supporting Goldsmith within the case.

Solicitor General Elizabeth Prelogar famous, for instance, that book-to-film variations typically introduce new meanings or messages, “however that has by no means been seen as an independently adequate justification for unauthorized copying.” She mentioned that Goldsmith’s capability to license her {photograph} and earn charges has been “undermined” by the Warhol Foundation.

The Art Institute of Chicago and different museums advised the court docket that the appeals court docket choice has triggered uncertainty not just for the work of arts themselves however the marketplace for copies of works the museum creates by means of catalogues, documentaries and web sites.

Lawyers for the museums additionally famous that the decrease court docket opinion “failed to contemplate” longstanding inventive traditions of utilizing components of pre-existing works in new works and requested the Supreme Court to revisit the appeals court docket ruling.

In the Baroque period, for instance, Giovanni Panini painted fashionable Rome (pictured in court docket papers) depicting a gallery displaying well-known artwork. Included are copies of pre-existing works together with Michelangelo’s Moses, Gian Lorenzo Bernini’s statutes of Constantine, David, Apollo and Daphne and his fountains of Piazza Navona. Contemporary artists additionally proceed to leverage pre-existing paintings, the museums argued. The avenue artist Banksy, for instance, painted a bit, “Girl with a Pierced Eardrum” onto a constructing in Bristol. It was in reference to Johannes Vermeer’s masterpiece, “Girl with a Pearl Earring” from 1665.

“All of those works wouldn’t be thought of transformative beneath the Second’s circuit’s” method, the museums argued.


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