Supreme Court Sides With Photographer In Copyright “Fair Use” Dispute Over Andy Warhol’s Prince Portrait

Ted Johnson
·4 min read
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The Supreme Court sided with a photographer in a dispute with the Andy Warhol Foundation over the late artist’s use of her photos as the basis for his own series of portraits of Prince.

The court’s ruling was closely watched by content creators, some of whom feared that it would widen the scope of copyrighted material that could be used for further derivative works. In fact, during oral arguments last fall, attorneys raised the issue of what the case would mean for sequels to Star Wars and spinoffs from shows like All in the Family.

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In a 1984 issue, Vanity Fair used a Warhol work that was based on a Lynn Goldsmith photo, having obtained a license from the photographer. The problems came about after Prince died in 2016 and Conde Nast, in its tribute to the singer, used a different Warhol work that was part of a series of artworks but also based on Goldsmith’s photo. The photographer contended that she was given no credit — nor did she grant a license — for that use of her work.

The justices issued a narrow ruling focused on one of four factors used by courts to determine the “fair use” of a copyrighted work. That is the “purpose and character” of the use.

Justice Sonia Sotomayor wrote in the majority opinion (read it here), “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s original photograph of Prince, and AWF’s copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature.”

Justices Elena Kagan and Chief Justice John Roberts dissented.

The Andy Warhol Foundation did not dispute a lower court’s determination that the other three factors in weighing whether a work was a “fair use” favored Goldsmith. Those include “the nature of a copyrighted work,” “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” and “the effect of the use upon the potential market for or value of the copyrighted work.”

The Warhol Foundation has argued that the Prince portraits are transformative uses, as Warhol’s works give a new meaning to the copyrighted photos: Warhol’s artwork portrayed him as iconic, the photo featured Prince as a vulnerable figure. Although a district court sided with the foundation, the Court of Appeals backed the photographer, and the Warhol side appealed to the Supreme Court.

The Motion Picture Association filed a friend-of-the-court brief in the case that was not in favor of either party, but its attorneys expressed concerns that the case could lead to a more expansive definition of what constitutes a “fair use.”

Among other things, the studios contend that the case could impact the protection of derivative works, things like sequels, remakes and reboots.

Karyn Temple, senior executive vice president and global general counsel at the MPA, noted that the court “emphasized that the fair use doctrine, while an important ‘escape valve’ that prevents an overly rigid application of copyright law, must respect creators’ exclusive rights, including the right to prepare derivative works such as a movie adaptation of a book and sequels and spin-offs — the types of uses ubiquitous in our industry.”

Mitch Glazier, the CEO of the Recording Industry Association Of America, suggested that the court’s ruling would have an impact on questions over artificial intelligence. At a Senate Judiciary subcommittee hearing this week, one senator, Marsha Blackburn of Tennessee, pressed OpenAI CEO Sam Altman on the use of musicians’ copyrighted recordings to train AI systems like ChatGPT.

“We hope those who have relied on distorted – and now discredited – claims of ‘transformative use,’ such as those who use copyrighted works to train artificial intelligence systems without authorization, will revisit their practices in light of this important ruling,” he said in a statement.

The opinion does not address the Andy Warhol Foundation’s display or sale of the works from his Prince series, but addressed more specifically the use of the Warhol artwork in the Conde Nast tribute without Goldsmith’s permission.

Maria Pallante, president and CEO of the Association of American Publishers, said that the decision showed that one aspect of fair use — weighing whether the use was transformative — “cannot be interpreted so broadly as to swallow the derivative work right.”

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