The U.S. Supreme Court today (Oct. 12) heard arguments in a first amendment case concerning Andy Warhol and a photographer of rock stars which could have significant implications on the concept of fair use across all creative industries.
The clash stems from 1981, when Lynn Goldsmith, a celebrity portrait photographer, took images of musician Prince. Three years later, Goldsmith was paid $400 to license one of these photographs to Vanity Fair, which Warhol used as the basis of a painting subsequently featured in the magazine. Warhol produced 16 more works based on Goldsmith’s photograph in what is known as the Prince series.
After Prince died in 2016, Vanity Fair’s parent company Condé Nast licensed one of the Prince series images from the Andy Warhol Foundation for the Visual Arts, an organization maintaining the artist’s work. Goldsmith, who became aware of Warhol’s series after seeing it in a 2016 commemorative issue, was not paid and eventually accused the Warhol Foundation of copyright infringement.
Fair use or Infringement?: Is Andy Warhol’s print (shown right), based on Lynn Goldsmith’s portrait of Prince (shown left), transformative and protected by fair use — or did he infringe on Goldsmith’s copyright of the photo? pic.twitter.com/i0AJw5mreB
— Duke Law (@DukeLaw) October 12, 2022
In 2019, a Manhattan federal district court found that Warhol’s work was protected by the fair use doctrine, which allows for the use of copyrighted works in certain circumstances, including when it has been transformed significantly from the original. However, in 2021, the U.S. Court of Appeals for the Second Circuit reversed this decision, arguing that any new meaning or message within Warhol’s image compared to Goldsmith’s photograph didn’t do enough to transform the original work.
A new, more narrow definition of fair use could radically affect not just the art industry, but creators across all forms of media. Groups including the Authors Guild, Motion Picture Association and museums like the Art Institute of Chicago and Metropolitan Museum of Art all filed friend of the court briefs ahead of the Supreme Court hearing to voice their opinions. Briefs filed on behalf of copyright law professors and documentary filmmakers took the side of the Warhol Foundation, while others including Dr. Seuss Enterprises and the Recording Industry Association of America (RIAA) sided with Goldsmith.
“A change against fair use will be more upsetting than one that affirms fair use,” said Brandon Butler, director of information policy and copyright advisor at the University of Virginia Library. ” A lot of groups have relied on fair use. It will have a much bigger impact..”
Museums, for example, often use copyrighted material in catalogues and various materials accompanying exhibits, while documentarians rely on the use of archival footage, journalists commonly refer to cultural or noteworthy material and libraries typically utilize such material for educational or research purposes.
While Butler said most creative industries fear any limitations on the current definition of fair use, corporate copyright holders, such as the musicians and record labels represented by the RIAA, would benefit from such a decision. “A world where people have to pay more often is better for them,” he said.
During today’s hearing, the Supreme Court justices were particularly interested in understanding the competitive nature of the magazine illustration market, according to Butler. “Warhol was in this pretty unusual situation of selling his work to the very same magazine Goldsmith had previously worked with,” he said, adding that he wouldn’t be surprised if the justices decide to apply a stricter definition of fair use to artwork created in competitive environments.
“But it’s very hard to predict what they’re going to do,” said Butler. “Copyright is a weird part of the law. It’s not something a Supreme Court Justice thinks about until they have to.”
