By John Fritze,
WASHINGTON − In a decision with potentially sweeping implications for artistic creation , the Supreme Court on Thursday sided against Andy Warhol’s foundation in a dispute over whether the late pop artist violated copyright law when he based a silkscreen on a photographer’s image of the musician Prince.
Justice Sonia Sotomayor wrote the decision for a 7-2 majority that did not break along the traditional split between conservatives and liberals.
Warhol’s foundation asserted that the Prince silkscreen fell under the fair use doctrine , which permits reproduction of copyrighted material without permission in some circumstances, such as for criticism. The artwork, the foundation said, qualified because it was transformative – completely changing the message conveyed by the original photograph.
But the rock ‘n’ roll photographer who filed the lawsuit, Lynn Goldsmith, countered 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 not to be an infringement of the earlier work.
“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Sotomayor wrote for the majority.
“To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals,” she said.
Sotomayor was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson. Justice Elena Kagan wrote a dissent, which was joined by Chief Justice John Roberts. The unusual vote count underscored the fact that copyright cases are not often decided along traditional ideological lines but sometimes involve wider questions about the contribution of art.
Kagan wrote that she worried about the impact of the court’s decision.
“You’ve probably heard of Andy Warhol; you’ve probably seen his art. You know that he reframed and reformulated −in a word, transformed − images created first by others,” she wrote. “Campbell’s soup cans and Brillo boxes.”
“That’s how Warhol earned his conspicuous place in every college’s Art History 101,” she added. “So it may come as a surprise to see the majority describe the Prince silkscreen as a ‘modest alteration’ of Lynn Goldsmith’s photograph.”
Experts on both sides of the case had predicted that the court’s decision could change how courts interpret and enforce copyright law. The outcome may have an impact on small businesses all the way up to the movie industry, which filed a brief in the case. Goldsmith said the foundation’s test would have also upended 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 in 2021. 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. The foundation’s attorneys say that test misreads 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 Oracle’s copyright because they were a fair use.
In nearly two hours of lively 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.