By: Alec Winshel
On October 12th, the Supreme Court heard oral arguments in the case of The Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith. Litigants traded arguments scrutinizing the boundaries of artistic license while Justices lobbed hypotheticals that probed the nature of book-to-film adaptations and the boundless creative implications of color. The hearing was a departure from the court’s recent spate of highly politicized cases. Laughter echoed in the chamber as Justice Thomas hinted at his waning fandom of Prince and lawyers admitted their insufficiently intimate knowledge of Lord of the Rings. It was a humorous proceeding that belied the truth of this case: the future of artistic expression had just been placed in the hands of the Supreme Court.
The Warhol case is a story about artists using each other’s work. Lynn Goldsmith is a photographer known for her portraits of musicians and, in 1981, she was hired to photograph Prince. The pictures that Goldsmith took didn’t appear in print. Instead, she saved them in her personal files. It is one of those images – a black and white close-up of Prince, adorned with lip gloss and gazing softly to camera – that has become the core of this case.
Fast-forward three years: Prince had grown into an international superstar. Vanity Fair magazine commissioned Andy Warhol, a creative juggernaut in his own right, to create a cover image for an issue celebrating the musical icon. The magazine paid Goldsmith four hundred dollars for the right to license her image: it would be used as reference for Warhol’s creation and would appear only in the magazine issue. Warhol had other designs. He used Goldsmith’s image to create sixteen works of silkscreen and pencil drawings. His creation didn’t just appear in the Vanity Fair issue; the works became seminal pieces in his collection and have earned hundreds of millions of dollars in revenue.
Following Prince’s death in 2016, another magazine published a commemorative issue that featured one of Warhol’s iconic images. It caught Goldsmith’s eye. She recognized the image of Prince that she’d taken over thirty years prior. The realization prompted Goldsmith to bring a lawsuit for copyright infringement against the Warhol foundation that has now reached the chambers of the country’s highest court.
Copyright law serves two aims: to protect artists’ right to control and profit from their works and to create a legal environment that fosters creativity. The Copyright Act of 1976 establishes the exclusive rights of the copyright holder, including the sale, reproduction, display, and derivative development of the work. These are the artist’s protections: a legal moat that ensures they can control and benefit from their work. Section 107 of the Copyright Act supports the other goal of copyright by carving out the Fair Use exceptions to copyright. Copyrighted work can be legally used for purposes of “criticism, comment, news, [and] reporting” among other aims. The Fair Use exception employs a four-factor test that interrogates the purpose, nature, market effect, and degree of similarity of the work. It is the Supreme Court’s role, ultimately, to decide whether Warhol’s creation fell within the scope of the Fair Use exception.
The Warhol foundation benefits from another case that came before the Supreme Court. In Campbell v. Acuff-Rose Music, the court was presented with the question of copyright infringement in a case of musical parody. The music group 2 Live Crew has substantially borrowed from another artist to create their song “Pretty Woman.” The court held that the use was permissible under the Fair Use doctrine. It successfully passed the first factor, which considers the “purpose and character of the use.” Specifically, Justice Souter held that the parody had “transformative value.” The parodic song had substantially altered the original work and it was, effectively, new art.
Roman Martinez, on behalf of the Warhol foundation, argued that Warhol’s creation was an analogous transformation of Goldsmith’s original work. He pointed to the difference in artistic expressions between the two pieces: the former a photoreal image carefully designed to highlight the gentle humanity of a young artist and the latter stylized pop-art casting its subject as equal parts image and icon. The judges pressed Martinez on his reading of the first factor of the Fair Use test. The law’s complete language may suggest that “purpose and character” is about the intended commercial distribution of the work, not its artistic meaning. Martinez pointed to the Acuff-Rose ruling that supports an interpretation that includes broader creative considerations. The judges also homed in on ramifications of a decision in his favor. The ruling could be understood to confer full legal rights to any work that substantially changes the original. Justices asked Martinez whether a film adaptation of a book would avoid the original copyright under such a framework. He suggested that such an adaptation wouldn’t be sufficiently different from its predecessor and, importantly, that other factors in the Fair Use test would guard against these problematic results. Martinez urged for a ruling that would protects artists’ ability to build creatively from existing works.
Lisa Blatt, on behalf of Goldsmith, argued that Warhol’s creation was an unnecessary infringement on Goldsmith’s work and that the petitioner’s definition of transformation is “too easy to manipulate.” Blatt pointed to the similarity of the two artworks and dismissed the supposed transformation as a consequence of Warhol’s famous style. In her view, there will always be grounds to argue a new meaning in derivative works. Art criticism is simply too subjective. The 2nd Circuit Court of Appeals had adopted a similar stance when it refused to attempt any interpretation of artistic novelty and ruled in favor of Goldsmith. Yaira Dubin, also in support of Goldsmith, focused on the role of necessity. In her view, the original work must be “necessary or at least useful” to the subsequent creation. Artists can’t borrow from each other without reason. Warhol could just as easily have used another reference image of Prince, but he instead chose to draw directly from Goldsmith’s protected work. Their arguments made a pointed defense of artists’ rights and the ability to protect one’s creative output.
The case’s implications are far-reaching. An opinion in favor of the Warhol foundation upholds the rights of artists to build on each other’s creations, but it steps into dangerous territory: expanding the Fair Use doctrine to any allegedly transformative work and potentially depriving original artists of their fair share.
A ruling for Goldsmith is a victory for artists’ lawful right to profit from their creation. It also creates a worrisome precedent not only for creative responses to existing art, but for the publication and display of artwork itself. The Supreme Court’s decision will be a seminal case for copyright law and – no matter the result – the case will echo across artistic industries for years to come.
Alec Winshel is a first-year law student at Harvard Law School, where he works at the Recording Artist Project. He can be reached at firstname.lastname@example.org.