Copyright or imitator? : Supreme Court hears Andy Warhol art case

A photo of late singer Prince is at the center of a copyright case in the US Supreme Court

Bertrand Guy

Text size

UPDATES throughout

The nine justices of the United States Supreme Court took on the role of art critics on Wednesday as they debated whether a photographer should be compensated for a photo she took of Prince used in a work by Andy Warhol.

In a lighter vein than most court cases, the arguments were peppered with eclectic pop culture references ranging from the hit TV show “Mork & Mindy” to hip hop group 2 Live Crew to the movie Stanley Kubrick’s horror film “The Shining”.

Justice Clarence Thomas volunteered at one time as a fan of Prince in the 1980s while Chief Justice John Roberts showed a familiarity with Dutch abstract artist Piet Mondrian.

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, could have far-reaching implications for US copyright law and the art world.

“The stakes for artistic expression in this case are high,” said Roman Martinez, lawyer for the Foundation, which was created after Warhol’s death in 1987.

“It would make it illegal for artists, museums, galleries and collectors to exhibit, sell for profit, or even own, a significant amount of work,” Martinez said. “It would also chill the creation of new art.”

The case stems from a black and white photo taken of Prince in 1981 by famed photographer Lynn Goldsmith.

In 1984, as Prince’s “Purple Rain” album took off, Vanity Fair asked Warhol to create an image to accompany a story about the musician in the magazine.

Warhol used one of Goldsmith’s photographs to produce a screen-printed image of Prince with a purple face in the familiar brightly colored style the artist made famous with his portraits of Marilyn Monroe.

The nine justices of the Supreme Court of the United States pose for their official photo

Olivier Douliery

Goldsmith received credit and was paid $400 for one-time use rights.

After Prince’s death in 2016, the Foundation licensed another image of the musician made by Warhol from Goldsmith’s photo to Vanity Fair publisher Conde Nast.

Conde Nast paid the Foundation a license fee of $10,250.

Goldsmith received nothing and claims his copyright in the original photo was infringed.

Andy Warhol’s 1964 ‘Shot Sage Blue Marilyn’ on display in New York


The Foundation argued in court that Warhol’s work was “transformative” – ​​an original piece imbued with new meaning or message – and was authorized under what is known as the doctrine of ” fair use” in copyright law.

Lisa Blatt, Goldsmith’s attorney, disagreed.

“Warhol got the picture in 1984 because Miss Goldsmith got paid and credited,” Blatt said.

The Foundation, she says, asserts that “Warhol was a creative genius who imbued the art of others with his own distinctive style.

“But (Steven) Spielberg did the same for movies and Jimi Hendrix for music,” Blatt said. “These giants still needed licenses.”

The Foundation argues that “the addition of new meaning is reason enough to copy for free,” she said. “But this test would decimate the art of photography by destroying the incentive to create the art in the first place.

“Copyrights will be at the mercy of imitators.”

Several judges seemed perplexed at being pushed into the role of art critics.

“How can a court determine the purpose or the meaning, the message or the meaning of works of art like a photograph or a painting,” Judge Samuel Alito asked. “There can be a lot of arguments about the meaning of the message.

“Do you consider art critics to be experts? »

“I think you could just look at both works and understand what you’re thinking, as a judge,” Martinez replied.

The Foundation’s attorney added that a ruling in Goldsmith’s favor would have “dramatic consequences, not just for the Prince series, but for all kinds of modern artwork incorporating pre-existing imagery”.

The Supreme Court heard the case after two lower courts issued split decisions, one in favor of the Foundation, the other in favor of Goldsmith.

The judges will render their decision by June 30.

Christopher S. Washington