The Supreme Court on Wednesday heard arguments in a clash over artwork by Andy Warhol that was based on a previous photograph of the musician Prince, a copyright case with potentially major implications for artists and creators.
The justices asked probing questions over whether Warhol infringed on a photographer’s copyright when he used her Prince portrait as the basis for a silkscreened rendering that graced the pages of Vanity Fair — or if Warhol’s artistic work should be considered transformative, and thus legal.
Justice Elena Kagan asked an attorney for the Andy Warhol Foundation if his late client’s status as an iconic figure in the pop art movement risked skewing the legal test for determining if a work of art is “transformative.”
“I mean, now we know who Andy Warhol was and what he was doing and what his works have been taken to mean. So it’s easy to say that there’s something importantly new in what he did with this image,” Kagan told attorney Roman Martinez.
“But, if you imagine Andy Warhol as a struggling young artist, who we didn’t know anything about,” she continued, “and then you look at these two images, you might be tempted to say something like, ‘Well, I don’t get it. All he did was take somebody else’s photograph and put some color into it.'”
The dispute over the late Warhol’s work arose in 2017, two years after Prince’s death from an accidental fentanyl overdose. The litigation concerned a Prince image shot by celebrity photographer Lynn Goldsmith, who alleged that Warhol’s later work infringed on her copyright.
Warhol’s foundation preemptively sued Goldsmith, seeking to protect the famed pop artist’s legacy. The foundation emphasized differences between what they described as Goldsmith’s “publicity photograph” and the Warhol silkscreen, which they characterized as a work of unique portraiture infused with the artist’s signature and iconic aesthetic.
Warhol’s foundation initially won their case, securing a court order declaring that the artist’s creation was transformative and thus legal under the doctrine of “fair use,” a defense against claims of copyright infringement.
On appeal, the New York-based U.S. Court of Appeals for the 2nd Circuit reversed the lower court’s ruling, siding with Goldsmith. The appeals court ruled that Warhol’s work amounted to an “unauthorized derivative” that was “substantially similar to the Goldsmith photograph as a matter of law.”
Courts have split over the notoriously thorny issue of what makes artwork transformative in the eyes of the law.
The Supreme Court confronted the question in a 1994 case involving the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman.” In a unanimous decision in favor of the rap group, the justices said courts, when weighing if a work is transformative, should look to whether the secondary artwork “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
Martinez, the attorney for Warhol’s foundation, urged the justices to reverse the 2nd Circuit’s ruling and emphasize that “an examination of meaning or message” in the new artwork is critical to the fair use test.
Justice Samuel Alito challenged Martinez over how courts would apply the “meaning or message” test in practice.
“You make it sound simple, but maybe it’s not so simple, at least in some cases, to determine what is the meaning or the message of a work of art,” Alito said. “There can be a lot of dispute about what the meaning or the message is. Some people would say it’s not necessarily the meaning or the message that the artist had in mind. I don’t know, if you called Andy Warhol as a witness, what would he say was the purpose of and the message or meaning of his creation?”
Martinez responded that courts would not be burdened with divining the artist’s intention because, under the rule announced in the 2 Live Crew case, the relevant question is “whether a new meaning or message could reasonably be perceived.”
Lisa Blatt, who argued on behalf of the photographer Goldsmith, cautioned that if Warhol Foundation’s test were embraced, then “copyrights will be at the mercy of copycats.”
“Petitioner argues adding new meaning is a good enough reason to copy for free. But that test would decimate the art of photography by destroying the incentive to create the art in the first place,” Blatt told the justices.
The Department of Justice argued in favor of Goldsmith.
A decision in the case, Andy Warhol Foundation v. Goldsmith, is expected by this summer.
—Updated at 12:50 p.m.