Prince’s Andy Warhol silkscreen faces Supreme Court scrutiny in copyright dispute

Washington — The Supreme Court on Wednesday wrestled with a copyright battle between rock-and-roll photographer Lynn Goldsmith and the Andy Warhol Foundation, in which the late artist used a 1981 photograph of Prince as the basis for a silkscreen image.

The case could have implications for the entertainment industry and creators who drew inspiration from pre-existing works, and during the more than 90 minutes of oral arguments, the judges noted a variety of cultural references, from “Lord of the Rings” to the Norman Lear television show. called upon. To Monalisa.

The court is weighing the foundation’s claims that Warhol did not violate federal copyright law when he based a set of 16 silkscreens and sketches on Goldsmith’s photo of Prince (which was disclosed by Justice Clarence Thomas). was a fan in the 1980s).

In the past the Supreme Court has allowed fair use if the act is “transformative”, that is, if it “adds something new, with another purpose or different character, replaces the first with a new expression, meaning or message. ” The law also considers whether the use of a work is for commercial or non-commercial use.

At times some judges questioned whether Warhol’s depiction of Prince constituted fair use under the Copyright Act, as he and Goldsmith’s picture had a common commercial purpose.

“Isn’t the classic thing with a photograph that would be used in stories about the subject of the photograph and, therefore, competing in the same market in which this adaptation was used?” Justice Brett Kavanaugh asked Roman Martinez, who argued on behalf of the Andy Warhol Foundation. “That is, it was used in a story about the prince, not in a story about Warhol.”

Prince and Andy Warhol silkscreen image of musical artist
The Supreme Court will consider whether the late Andy Warhol infringed the photographer’s copyright when creating a series of silkscreens featuring musician Prince.

US Supreme Court

Justice Sonia Sotomayor echoed Kavanaugh’s sentiment, remarking that Warhol’s use of the portrayal was “highly commercial”.

“Goldsmith even licensed his photographs to magazines, as did Warhol’s estate,” she said. “How is it that your [2016] Don’t Licensing and Goldsmith’s Photos Share the Same Business Purpose?”

The controversy stems from a black-and-white photograph of Goldsmith, considered a leading rock photographer, that Prince took in 1981, when he was a rising musician.

Three years later, as Prince rose to stardom, Vanity Fair hired Andy Warhol to create an illustration depicting Prince, which would accompany a magazine article titled “Purple Fame.” The magazine chose Goldsmith’s 1981 portrait of Prince to be used as an “artist reference” for Warhol’s silkscreen, paying Goldsmith a $400 license fee and agreeing to credit him for the source photo.

Warhol produced 16 silkscreens and sketches known as the “Prince Series” and Vanity Fair carried one of the Purple Prince’s images in its November 1984 issue.

After Warhol’s death in 1987, his foundation took ownership of the Prince Series, and, according to court filings, sold 12 of the 16 originals. The other four are in the Andy Warhol Museum.

Prince died in 2016 and licensed the image known as the Orange Prince from the Prince series for the cover of a tribute magazine from Condé Nast, Vanity Fair’s parent company, the Foundation. The company paid a fee of approximately $10,250 to run the illustration on the cover.

Goldsmith did not receive payment or credit, and warned the Andy Warhol Foundation of potential copyright infringement.

Both sides went to court, and a federal district court favored the foundation, finding that Warhol’s Prince series works are protected by fair use, as the illustrations are “transformative” and the drawings “wash”.[ed] expresses vulnerability and humanity in the distant Prince Goldsmith’s photographs.” The court also noted that the licensing markets for Warhol’s and Goldsmith’s works are different.

But Second Circuit disagreed, finding Warhol’s Prince series was not transformative, and thus not considered fair use, and retained “essential elements of the Goldsmith photograph without significantly adding to or altering those elements”. The judges, the court said, “should not assume the role of art critic and seek to ascertain the intent or meaning behind the work at issue.”

The Andy Warhol Foundation appealed to the Supreme Court, which is tasked with deciding whether a follow-up work is transformative because it conveys a different “meaning or message” from the original and is therefore fair use under the Copyright Act.

During the arguments, Justice Samuel Alito questioned how a court should “determine the purpose, message or meaning of works of art such as a photograph or painting.”

“You make it simple,” he told Martinez. “But perhaps it is not so easy, at least in some cases, to determine what the meaning or message of a work of art is. There can be much controversy as to what the meaning or message is.”

Warhol’s notoriety and understanding of the messages conveyed in his work did not go unnoticed by the court.

Justice Elena Kagan suggested that the approach advocated by the Andy Warhol Foundation benefits “a certain kind of vision”.

“We know who Andy Warhol was and what he was doing and what his actions have been interpreted as. So it’s easy to say that there is something significantly new in what he did with this image,” she said. “But, if you imagine Andy Warhol as a struggling young artist we knew nothing about, and then you look at these two images, you might be tempted to say something like, ‘Well, I don’t get it. All he did was take someone else’s picture and put some color in it.'”

Kagan continued: “We can’t always count on the fact that Andy Warhol is Andy Warhol to know how this interrogation is done.”

Lisa Blatt, who argued on Goldsmith’s behalf, said the transformational definition advocated by Warhol’s foundation was “too easy to manipulate.”

“Copyright will be at the mercy of copycats,” she warned judges if the foundation persists. “Anyone can turn Darth Vader into a hero or spin-off ‘All in the Family’ into ‘The Jeffersons’ without paying the creators a penny.”

Supporting Warhol’s foundation are documentary filmmakers, artists and curators who argue that fair use is an integral safeguard at the risk of being restricted if the Supreme Court upholds the Second Circuit’s ruling.

Siding with Goldsmith, meanwhile, is a range of entertainment industry groups, including the Recording Industry Association of America and the Screen Actors Guild—the American Federation of Television and Radio Artists, who argue that focusing on the meaning or message of a secondary work leads to The judges will be turned into art. Critics. The Justice Department is also backing Goldsmith in the dispute.

Blatt warned the court that a decision with the Andy Warhol Foundation would have broad implications for creators, as any spinoffs of a television show or book-to-movie adaptation would no longer require a license.

The Foundation argues that Warhol is “a creative genius who influenced other people’s art with his distinctive style,” she said. “But so did Spielberg for movies and Jimi Hendrix for music. Those giants still needed a license.”

A decision from the Supreme Court is expected by the end of June.

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