Comparison of the lines on the subject’s face in Lynn Goldsmith’s Prince publicity photograph versus Andy Warhol’s Prince series, from The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al, No. 1:2017cv02532 (2017)

If your Andy Warhol itch hasn’t been adequately scratched by the latest Warhol docuseries on Netflix, the Warhol exhibition on view at the Brooklyn Museum, or news that a Warhol work is estimated to rake in some $200 million at Christie’s in May, rejoice: The Supreme Court has agreed to hear a Warhol copyright infringement case that has been bouncing around the courts since 2017. This high-stakes case, which asks whether Warhol’s appropriation of Lynn Goldsmith’s photograph of Prince in a silkscreen series qualifies as fair use, will have significant implications for artists who utilize copyrighted material in their work.

Goldsmith, a photographer whose images of musicians have featured on numerous album covers, photographed Prince on assignment for Newsweek in 1981. Three years later, she licensed the rock star’s image to Vanity Fair to be used as a reference for an artist’s illustration in an article on Prince, “Purple Fame.” Warhol, who produced the illustration for the piece, proceeded to use the photograph — without Goldsmith’s permission or knowledge — as the basis for 15 silkscreen prints and drawings, known as the Prince series.

Goldsmith became aware of Warhol’s Prince series in 2016 when, after Prince’s death, Vanity Fair featured a work from the series on a commemorative cover. When the photographer approached the Andy Warhol Foundation for the Visual Arts, which holds the copyrights to Warhol’s work, alleging that her own copyright had been violated, the Foundation sued her, arguing that Warhol had transformed the character of the image through color changes, cropping, and more to give Prince a mask-like appearance that commented on the nature of celebrity.  

In 2019, Manhattan’s federal district court ruled in favor of the Andy Warhol Foundation, affirming that Warhol’s series was protected under the fair use doctrine because it “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” adding that each work is recognizable as a “Warhol” rather than a photograph. Goldsmith petitioned the Second Circuit Court of Appeals to review the decision, and in 2021 they reversed the ruling, declaring that Goldsmith’s photo provided a “recognizable foundation” for Warhol’s work and that the latter artist’s celebrity status shouldn’t affect the ruling, calling out “celebrity-plagiarist privilege.”

In late 2021, the Andy Warhol Foundation sought Supreme Court review, arguing that the Second Circuit’s decision “threatens not only the production of future pieces of art, but also the availability and enjoyment of current works” — and could restrict First Amendment expression. This past Monday, March 28, the Supreme Court agreed to take the case, marking one of the rare moments when contemporary art becomes a discussion topic in the nation’s highest court.

Article “Purple Fame” in the November 1984 issue of Vanity Fair, from The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420 (2021)

In a statement this week, Andy Gass, a partner at the law firm representing the Andy Warhol Foundation, described the “fair use” doctrine as a longstanding “cornerstone of creativity in our culture.”

“Our goal in this case is to preserve the breadth of protection it affords for all — from the Andy Warhols of the world, to those just embarking on their own process of exploration and innovation,” Gass wrote.

Goldsmith has also released a statement on the occasion of the Supreme Court’s decision to take the case.

“Five years ago, the Foundation sued me to obtain a ruling that it could use my photograph without asking my permission or paying me anything for my work,” she wrote. “I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work — and also to decide when, how and even whether to exploit their creative works or license others to do so.”

Art and copyright attorney Sergio Muñoz Sarmiento, who notes that he’s one of the few art lawyers who back the Second Circuit outcome, told Hyperallergic that the Supreme Court “will hopefully clarify what’s appropriate under the four-factor statutory fair use analysis.” He expressed his hope that the Supreme Court will “gut” Campbell’s “horrific transformative test,” referring to the concept of transformative use introduced in the 1994 Supreme Court decision Campbell v. Acuff-Rose Music Inc. The ruling established that when an appropriation of a work adopts an appearance or meaning distinct from the original (as with, for example, parody), the use is transformative, and thus more likely to qualify as fair use.

Sarmiento added that, in the age of digital reproduction, appropriation artists need to have a better understanding as to what US copyright law allows them to do. “Then it’s up to them whether they have the financial means to test the gray areas,” he said.

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Cassie Packard

Cassie Packard is a Brooklyn-based art writer. (cassiepackard.com)