The Supreme Court ruled on Thursday the foundation for the late Andy Warhol infringed on a photographer’s copyright when he used a series of silk screens based on an image of the late singer Prince.
Through a 7-2 decision written by Justice Sonia Sotomayor, the justices rejected the position from the foundation that holds Warhol’s rights in a battle surrounding the use of an image on a Conde Nast magazine cover. Warhol’s foundation said the images transformed music photographer Lynn Goldsmith’s 1981 portrait of Prince, making them “fair use” under federal copyright law.
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The question is whether the first fair use factor in the infringement dispute weighs in favor of the foundation’s commercial licensing to the magazine company. The majority of justices held that the first factor favors Goldsmith, rather than the foundation.
“To rule otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same,” Sotomayor wrote.
Most of the court’s conservative members, including Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, joined Sotomayor’s opinion along with liberal Justice Ketanji Brown Jackson.
The case was a closely watched one by artists and creatives alike. It stemmed from a move by Goldsmith’s company to license her photo of Prince to Vanity Fair to allow Warhol to use it as reference for a one-time illustration of Prince for the magazine’s November 1984 issue. While just one silkscreen ran in the issue, Warhol made 14 illustrations based on the photo.
When Prince died in 2016 of an accidental fentanyl overdose, Warhol’s foundation licensed one of the different works in the visual artist’s series known as “Orange Prince” to Conde Nast, which subsequently published it. Goldsmith then gave notice that she believed her copyright was infringed.
Warhol’s foundation preemptively sued Goldsmith, seeking an outcome that Warhol’s work did not violate copyright laws. Goldsmith countersued in response.
Warhol’s foundation won its case at the district court level after an order deemed the artist’s work as transformative and legal under “fair use,” which defends against copyright infringement claims.
But the photographer gained favor in an appeals court through a ruling that held the court was not in the business of playing an art critic and considering the meaning behind Warhol’s work in its copyright analysis.
Lisa Blatt, an attorney who argued on behalf of Goldsmith, warned the justices during October oral arguments that if they agreed with the Andy Warhol Foundation, it would “decimate the art of photography.”
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But Chief Justice John Roberts and Justice Elena Kagan stepped away from the majority to raise awareness of the potentially troublesome outcome the opinion could have for other artists besides Warhol.
“Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more,” Kagan wrote.
