WASHINGTON − In a decision with implications for artistic creation, the Supreme Court on Thursday sided against Andy Warhol’s foundation in a dispute about 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.
Impact:How a Supreme Court case about Warhol’s images of Prince could change art
Guide:A look at the key cases pending at the S
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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.
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 a sweeping 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 upend 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.
