Famed artist Andy Warhol violated a photographer’s copyright when he used her picture of rocker Prince as the basis for 13 silkscreen portraits of the “Purple Rain” star nearly 40 years ago, the Supreme Court ruled Thursday.
In a 7-2 decision, the high court found the Andy Warhol Foundation for the Visual Arts (AWF) improperly licensed a work from the pop art icon’s series based on a photograph by Lynn Goldsmith for the cover of a commemorative magazine after the “Darling Nikki” singer died in 2016.
“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Justice Sonia Sotomayor wrote in her opinion.
Sotomayor was joined by Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Ketanji Brown Jackson.
Goldsmith photographed the “up and coming” Prince Rogers Nelson in 1981 for a piece commissioned by Newsweek.
Warhol then used her image as the basis for a “purple silkscreen portrait” to accompany a 1984 article on Prince in Vanity Fair.
The magazine paid Goldsmith $400 to use the image for “one time” only, Sotomayor’s opinion recounted.
Warhol died in 1987.
After Prince’s death, Vanity Fair’s parent company, Conde Nast, asked the AWF, rather than Goldsmith, for permission to reuse the 1984 artwork for a special edition magazine commemorating him.
The AWF licensed an different image from the series, known as “Orange Prince” for $10,000. When Goldsmith saw the image based on her photograph, she accused the AWF of copyright infringement.
The Warhol Foundation sued Goldsmith and a lower court sided with them, ruling that the image constituted “fair use.” An appeals court sided with Goldsmith, sending the matter to the Supreme Court.
In her opinion, Sotomayor wrote that the licensed Warhol work and Goldsmith’s photograph were not “sufficiently distinct” from each other for fair use to apply.
“Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose,” she wrote. “AWF has offered no other persuasive justification for its unauthorized use of the photograph.”
Sotomayor, who included examples of Warhol’s famous works throughout her opinion, also noted that People magazine had paid Goldsmith $1,000 to use one of her photographs in its own Prince tribute issue.
“Other magazines, including Rolling Stone and Time, also released special editions,” she wrote. “All of them depicted Prince on the cover. All of them used a copyrighted photograph in service of that object. And all of them (except Condé Nast) credited the photographer.”
In her dissent, joined by Chief Justice John Roberts, Justice Elena Kagan said the decision left prior precedent in “shambles.”
“The majority holds that because Warhol licensed his work to a magazine — as Goldsmith sometimes also did — the first [fair use] factor goes against him,” Kagan wrote. “It does not matter how different the Warhol is from the original photo — how much ‘new expression, meaning, or message’ he added.
“It does not matter that the silkscreen and the photo do not have the same aesthetic characteristics and do not convey the same meaning. It does not matter that because of those dissimilarities, the magazine publisher did not view the one as a substitute for the other. All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him,” Kagan added.
The justice concluded her dissent by warning that if the opinion is used to prevent artists from “improv[ing] upon prior works,” “It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
