When is “fair use” fair? In Warhol copyright case, Supreme Court could offer new answers.

Peter Balonon-Rosen Oct 7, 2022
Heard on:
Was Andy Warhol's use of Lynn Goldsmith's Prince photo fair use? The Supreme Court will weigh in. Courtesy Supreme Court of the United States

When is “fair use” fair? In Warhol copyright case, Supreme Court could offer new answers.

Peter Balonon-Rosen Oct 7, 2022
Heard on:
Was Andy Warhol's use of Lynn Goldsmith's Prince photo fair use? The Supreme Court will weigh in. Courtesy Supreme Court of the United States

Updated May 18, 2023: On Thursday, the Supreme Court ruled 7-2 against Andy Warhol in the case involving photographer Lynn Goldsmith, who argued Warhol had violated her copyright on a photograph of Prince.

Two deceased superstars, the artist Andy Warhol and the musician Prince, will take center stage at the nation’s highest court. No, it’s not one of those hologram concerts no one ever asked for — looking at you, Whitney Houston and John Lennon — it’s a Supreme Court case that could reshape federal copyright law.

The Supreme Court will hear arguments in a case that could change how courts decide when using copyrighted work without permission is OK and when it’s not.

The roots of the case go back to 1984, when Vanity Fair paid photographer Lynn Goldsmith $400 for rights to a photo she took of Prince. The magazine commissioned Andy Warhol to make one of his trademark screen prints based on the photo to run alongside an article about Prince.

But Warhol didn’t make just one new version of the photo. He made a series of 16 pieces.

In 2016, following Prince’s death, the Andy Warhol Foundation licensed out one of the additional pieces for a magazine issue about Prince, with no credit or license from Goldsmith. Now, the Supreme Court will weigh in on whether Warhol violated copyright law and ripped off Goldsmith’s work or transformed her photo into something new.

Warhol used plenty of images he didn’t originally create. His Marilyn Monroes are a reworking of a promo for the film “Niagara.” His Jackie Kennedy series was a reworking of news clippings. Unsurprisingly, his Campbell’s soup can came from a can of soup.

“To create a portrait, just like Andy Warhol, there’s a few steps that I would take,” Caroline Mead, an educator at the Andy Warhol Museum in Pittsburgh, told a small crowd gathered in the museum’s lobby. 

Caroline Mead leads a demo on Andy Warhol’s artistic process at the Andy Warhol Museum. (Peter Balonon-Rosen/Marketplace)

Mead walked visitors through Warhol’s process: Take an image, reduce it to black and white, burn it onto a silk screen, paint a canvas in bright colors and silk screen the original image on top.

“This is completely transformed from what I started [with],” said Mead. “And I did this all with one screen and a little bit of paint.”

Warhol used tools of mass production and pop culture symbols to raise certain questions.

“Is this a rip-off?” Mead asked. “What is rip-off? What is original? What is authentic?”

Whether Warhol ripped off Goldsmith is pretty much the question the Supreme Court will have to answer. Goldsmith declined to comment, citing the case. But photographer Jeff Sedlik knows her situation. 

He’s licensed out photos, but he’s also seen plenty of his work, like a famous portrait of jazz great Miles Davis, show up in others’ art and tattoos. No license. No credit. No money. 

“My whole existence as a businessperson in the arts and as an artist depends on copyright law,” Sedlik said. “I need to know that I’m able to generate income from my various photographs.”

Jeff Sedlik spent over a year conceptualizing and working on his famous Miles Davis portrait, left. An unauthorized tattoo reproduction, right. (Courtesy Supreme Court of the United States)

Lawyers for the Warhol Foundation say the artist transformed Goldsmith’s photo into a comment on the nature of celebrity. In 2019, a federal district court agreed and said it was an example of what’s known as fair use. Essentially, using it without permission was fair.

But an appeals court saw it differently, saying Warhol retained “essential elements” of Goldsmith’s photo, so he didn’t transform it enough to qualify as fair use.

“Traditionally, ‘fair use’ has protected building on prior works,” said Jane Ginsburg, law professor at Columbia University.

Not all building is fair. Courts ruled that an unauthorized sequel to the novel “Catcher in the Rye” wasn’t fair use because it didn’t comment on the original, it simply used copyrighted material without permission. On the other hand, “The Wind Done Gone” — a retelling of “Gone With the Wind” from slaves’ point of view — was deemed fair use.

“Because it was a devastating commentary on the backdrop of slavery in ‘Gone with the Wind,’” Ginsburg said.

Courts look at four factors when deciding if fair use applies: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work.

The “purpose and character of the use,” or why something was used without permission, was in play the last time the Supreme Court looked at artistic fair use. That was in the landmark 1994 case Campbell v. Acuff-Rose Music, Inc.

The rap group 2 Live Crew parodied Roy Orbison’s “Oh, Pretty Woman” in their own song “Pretty Woman.” The Supreme Court ruled that parody qualified as fair use if it is “transformative.” In that case, the court said that 2 Live Crew’s song wasn’t just a cover, it had transformed the 1964 hit into a rap commentary.

“Commenting on the naivete of the original work,” said Lateef Mtima, law professor at Howard University and director of the Institute of Intellectual Property and Social Justice.

In the current case, Mtima said courts need to consider the impact Warhol’s use of Goldsmith’s photo had on the commercial market for her photo. Specifically, could Warhol’s portrait be a substitute for Goldsmith’s photo and crowd it out of the market?

How far away from the original work do you have to be?” asked Mtima.

Such questions are largely left up to judges’ discretion. Mtima pointed out that that leaves the door open for biases against certain groups.

“Groups that, for other reasons, are marginalized and placed lower on the social infrastructure,” Mtima said.

A lot of people are paying attention to this case. Fan fiction creators say limiting fair use could hurt their community. Recording industry representatives have told the court that a broad interpretation of fair use would undermine their ability to “protect their valuable copyrights.”

For artist Deborah Kass, a Warhol Foundation board member in Brooklyn, New York, preserving visual artists’ ability to incorporate others’ work into their own is important.

“I think when you use the preexisting language, whether it’s other people’s art or painting or art history, there’s a common language others can read,” Kass said.

The Supreme Court will hear arguments over whether Warhol’s work is fair use or a potentially illegal rip-off of Goldsmith during arguments next week. Their decision could impact how judges view fair use in future cases.

“The danger we’re facing here, if we go too far in one direction, you have judges stifling creativity,” said Mtima, the Howard professor. “But we also don’t want the more powerful, or in some instances, the less creative, to come along and misappropriate the accomplishments of others.”

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