On May 18th, 2023, the US Supreme Court ruled in favor of photographer Lynn Goldsmith, who accused artist Andy Warhol of infringing on her copyright over a photo of singer and musician Prince.
The case, for which the judges of the Court ruled with a majority of 7 to 2, concerned the images of Prince created by Warhol in 1984 for a report on Vanity Fair.
As we explained in a previous article (see here), renowned celebrity photographer Lynn Goldsmith has spent decades photographing some of the most iconic and biggest names in the world of music and the arts.
Among the many, many famous faces she has captured in jaw-dropping, often extremely candid and intimate moments are artists such as Bruce Springsteen, the Rolling Stones, Blondie, Bob Dylan, Patti Smith, Ozzy Osbourne, Sting – and Prince.
A photo she took of Prince decades ago is what most recently set off a copyright case that has been snaking its way through the justice system for several years until today, when it finally made its way to the supreme court itself.
The photo in question, a portrait of Prince captured during a brief studio session in New York City way back in 1981, was later used by famed pop artist Andy Warhol in one of his illustrations. In 1984, for $400, Vanity Fair magazine licensed a specific photo of Prince that Goldsmith had taken in 1981.
What Vanity Fair didn't tell Goldsmith is that Warhol used her photo as a reference for one of his works. Furthermore, she only learned much later that Warhol then used the same photo as the basis for 16 of other works by him titled "Prince Series". Of these, 14 were screen prints and 2 were pencil drawings.
Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair's parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Ms. Goldsmith received no money or credit.
And it is on this case that the attention of the judges of the Court has focused.
The Court found that both Goldsmith's original photograph and Warhol's portrait serve the same purpose with a commercial use. Warhol did not transform the original.
"Lynn Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original.
In this case, however, Goldsmith's original photograph of Prince, and AWF's copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature. AWF has offered no other persuasive justification for its unauthorized use of the photograph.
Therefore, the "purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes" weighs in Goldsmith's favor".
"While our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol's image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use.
But those cases are not this case. Before us, Ms. Goldsmith challenges only the Foundation's effort to use its portrait as a commercial substitute for her own protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician.
And our only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol's work, that does not mean it always will. Under the law Congress has given us, each challenged use must be assessed on its own terms".
Goldsmith's specific argument in the supreme court against the Andy Warhol Foundation's counterclaim could upend the foundations of how artists, photographers and creatives of all stripes can build on the material of others for years to come.
The Supreme Court ruling can be seen here.
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