- Warhol used an image of Prince captured by photographer Lynn Goldsmith for his silkscreen.
- Goldsmith asserted the Warhol foundation’s decision to license the image violated her copyright.
- The court’s decision could significantly change how courts interpret and enforce copyright law.
WASHINGTON – The Supreme Court on Wednesday appeared to wrestle with a case pitting Andy Warhol’s foundation against a rock ‘n’ roll photographer who claims the American pop artist violated her copyright by basing one of his colorful silkscreens on an image she captured in 1981 of the musician Prince.
Warhol’s foundation asserts the artwork falls under the fair use doctrine, which permits reproduction of copyrighted material without permission in some circumstances, such as for criticism. The silkscreen, the foundation says, qualifies because it was transformative – completely changing the message conveyed by the original photograph.
But the photographer, Lynn Goldsmith, counters that such a standard would make copyright “completely unworkable,” in part because it would ask judges to assess the meaning of a derivative artwork and whether it is transformative enough to be legal.
In nearly two hours of argument during which the justices traded a litany of hypotheticals and pop culture references, members of both the conservative and liberal wings seemed to wrestle with how courts are supposed to figure out when a secondary work of art qualifies as “transformative” enough to beat an infringement claim.
“How is a court to determine the message or meaning of works of art, like a photograph or a painting?” Associate Justice Samuel Alito asked the lawyer representing Warhol, at one point wondering how Warhol himself might have explained that meaning and how it differed from Goldsmith’s. “You make it sound simple, but maybe it’s not so simple.
“There can be a lot of dispute about what the meaning or the message is,” he said.
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Impact:How a Supreme Court case about Andy Warhol’s images of Prince could change the face of art
Guide:A look at the key cases pending before the Supreme Court
If an artist repainted a replica of the Mona Lisa with a blue dress, Alito suggested, most people might not see an important difference between the two images. But an expert in Renaissance art, Alito said, likely would perceive an enormously different message.
Associate Justice Elena Kagan wondered if the Warhol image doesn’t project a different message largely because Warhol himself is such a well recognized American artist.
“If you imagine Andy Warhol as a struggling young artist who we didn’t know anything about, and then you look at these two images, you might be tempted to say something like, ‘Well, I don’t get it. All he did was take somebody else’s photograph and put some color into it,'” Kagan said. “It seems that it’s harder than you say. We can’t always count on the fact that Andy Warhol was Andy Warhol to know how to make this inquiry.”
But Chief Justice John Roberts seemed to push back on that analysis at one point, recalling that Warhol’s position is that the silkscreen offered a vastly different meaning.
“It’s not just a different style. It’s a different purpose,” Roberts said. “One is…commentary on modern society. The other is to show what Prince looks like.”
The court’s decision in the case, which is not expected until next year, could significantly change how courts interpret and enforce copyright protection. Its decision may have sweeping implications for small businesses all the way up to the nation’s multi-billion movie industry, which filed a friend of the court brief in the case. Goldsmith argues Warhol’s test would upend copyright, allowing someone to reproduce a popular movie with a slightly altered ending and claim that it conveyed a new meaning and was not infringement.
The case is Andy Warhol Foundation for the Visual Arts v. Goldsmith.
The New York-based U.S. Court of Appeals for the Second Circuit sided with Goldsmith last year. Putting the two images of Prince side by side, the appeals court ruled Warhol’s piece wasn’t transformative because it “recognizably” derived from and retained “the essential elements” of Goldsmith’s photograph. Warhol’s attorneys say that test misreads earlier Supreme Court precedent and would make it difficult for artists to ever reference earlier works.
The Supreme Court weighed in on the issue in a landmark 1994 decision involving 2 Live Crew’s rendition of Roy Orbison’s “Oh, Pretty Woman.” A unanimous court sided with the hip-hop group, placing a heavy emphasis on the idea that the parody was “transformative” and so was a fair use under copyright law.
Last year, in another high-profile copyright case, a 6-2 majority ruled that code routines Google recycled from Oracle’s Java programming language to create its Android operating system did not violate copyright because it fell under the fair use provision.
Despite the seriousness of the issue as a cultural and economic matter, the hypothetical examples about the Mona Lisa, abstract modern art and whether air brushed photographs of attorneys conveyed new meaning created an air of levity at the nation’s highest court.
“Let’s say that I’m…a Prince fan, which I was in the 80s,” Associate Justice Clarence Thomas said at one point as he began to lay out a hypothetical question.
“No longer?” Kagan interjected as Thomas and the courtroom broke into laughter.
Thomas paused before allowing, “well, only on Thursday nights.”