By Delaney Szekely, Staff Writer
During his prosperous artistic career, Andy Warhol became known for his contributions to Pop Art through his many brightly colored silkscreen series depicting famous brands and people.[1] His images of Campbell’s soup cans and Marilyn Monroe are familiar to many, but in 2016 an image of famous singer, Prince, became the subject of serious controversy regarding fair use in copyright law.[2]
The case arose after Vanity Fair utilized an image of Prince, entitled Orange Prince, created by Warhol from a photograph taken by photographer Lynn Goldsmith. The photo, taken by Goldsmith in 1984, was licensed in a “one time, one use” agreement with Vanity Fair.[3] In turn, Vanity Fair provided the image to Warhol to create one of his iconic Pop Art series. Warhol created a sixteen-image series featuring “silkscreen paintings, prints, and drawings” using Goldsmith’s photo.[4] The series was not sold or utilized in any other way during Warhol’s lifetime. Upon Warhol’s death, the Andy Warhol Foundation (AWF) became managers of this series, which was part of his estate.[5]
After Prince’s death in 2016, AWF provided Vanity Fair a license for Orange Prince.[6] Even though the image was created from the original photograph captured by Goldsmith, Vanity Fair did not provide credit to her or obtain a license from her for the original photo. Goldsmith informed AWF that the image infringed her copyright of the original photo. AWF filed a lawsuit asserting the image did not violate Goldsmith’s copyright, because the image constituted a fair use of the image under the fair use doctrine.[7]
The art world waited on bated breath for the outcome of this case, because of the widespread impact the decision would render on art. Although lower courts returned verdicts in favor of AWF, ultimately, the United States Supreme Court found that Warhol’s image did not constitute a fair use of Goldsmith’s copyrighted image. In order for the fair use principle to apply, the material must in some way benefit the public “without substantially impairing the present or potential economic value of the first work.”[8] The Court held that Goldsmith’s copyright had been violated because Warhol’s images greatly impacted Goldsmith’s earning potential from the photo.[9]
Further, the Court emphasized the significance of transforming the original work into something different.[10]To consider a use of a copyrighted image to be adequately transformative, the new creation must “add something new, with a further purpose or different character.”[11] The AWF argued that the “new meaning” instilled in the Prince series was sufficient transformation, however, the Court disagreed. New meaning alone is not an effective method of transformation, and as such the fair use defense was not appropriate.[12]
The importance of fair use in art cannot be understated because it provides protections for innovative creators, while also protecting the original artist. However, some dissenting justices feared this decision would negatively impact artists. The dissent emphasized that such strict enforcement of fair use principles will create unnecessary barriers for creating new art.[13]
Although there is anxiety surrounding the lasting impacts on art resulting from this decision, legal experts have not found that the implications of this case are all that dire regarding the future production of art. Not only does this case emphasize protections for original creators, but it also aims to enforce these rules against notable artists. All in all, through this case Warhol continues to impact the art world long after his death.[14]
[1] https://www.artnews.com/list/art-news/artists/who-was-andy-warhol-1234642951/early-life/.
[2] https://www.npr.org/2023/05/18/1176881182/supreme-court-sides-against-andy-warhol-foundation-in-copyright-infringement-case.
[3] https://www.wipo.int/wipo_magazine/en/2023/04/article_0006.html.
[4] Id.
[5] Id.
[6] https://www.npr.org/2023/05/18/1176881182/supreme-court-sides-against-andy-warhol-foundation-in-copyright-infringement-case.
[7] https://www.wipo.int/wipo_magazine/en/2023/04/article_0006.html.
[8] Id.
[9] Id.
[10] https://www.npr.org/2023/05/18/1176881182/supreme-court-sides-against-andy-warhol-foundation-in-copyright-infringement-case.
[11]https://www.copyright.gov/fairuse/#:~:text=Transformative%20uses%20are%20those%20that,purpose%20of%20encouraging%20creative%20expression.
[12] https://www.wipo.int/wipo_magazine/en/2023/04/article_0006.html.
[13] https://www.npr.org/2023/05/18/1176881182/supreme-court-sides-against-andy-warhol-foundation-in-copyright-infringement-case.
[14] Id.
