Last week, the Supreme Court ruled that photographers are entitled to copyright “even against famous artists” in a 7-2 vote in favor of photographer Lynn Goldsmith over Andy Warhol’s silk screens of an iconic Prince photograph. The decision for Andy Warhol Foundations for the Visual Arts, Inc. v. Goldsmith in part hinges on the photographer’s original contract specifically granting one-time use, but the Supreme Court also ruled that the silk screens were not transformative enough of the original photograph to fall under Fair Use because both had the same purpose of depicting Prince in a magazine article and both were commercial in nature.
Warhol licensed the photograph to Vanity Fair in 1984 for one-time use, which the magazine used to commission Warhol for an illustration used in an article about the musician. Court documents indicate that Goldsmith received a $400 payment for the one-time license. Warhol used the source image to create 12 silkscreens, two drawings and two screen prints.
Goldsmith wasn’t aware of the image being used beyond that initial license until 2016, when she saw a special edition magazine from Conde Nast commemorating the musician after his death, featuring Warhol’s silkscreen. According to court documents, the Andy Warhol Foundation received $10,000 for licensing the image for the special edition.
After Goldsmith reached out to the Andy Warhol Foundation over the photograph’s use, the foundation filed suit first for a declaratory judgement of non-infringement, claiming the artwork fell under fair use. The case has bounced around in lower courts since, with a U.S. District judge siding with the foundation in 2019 but a U.S. Court of Appeals sided with the photographer in 2021.
Warhol’s fame has propelled the case into the spotlight, with the appeals court citing concern over “inevitably creating a celebrity-plagiarist privilege.” Artists across multiple genres have been watching the case as it moved up through the court system — so what does the Supreme Court decision mean for photographers and other artists?
The two keys to the decision are the photograph’s original one-time use license and the courts decision that Warhol’s use of the image wasn’t transformative enough to fall under fair use. The first reiterates the importance of clear contract language. Goldsmith licensed her image to be used — but that license was limited to one-time use, not 16 different pieces published beyond the initial agreement.
The Supreme Court’s decision focused solely not just on fair use, but on the first of the four factors of fair use: the purpose and character of the work. The Andy Warhol Foundation argued that the work was transformative because it carried a different meaning than the original photograph. The court, however, said that both works shared the same purpose — to depict Prince in magazine articles — and that both were commercial in nature. That’s key for artists to understand. The court noted that Warhol’s work Campbell, which features the popular soup cans, is a parody, which “has an obvious claim to transformative value.”
“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Justice Sonia Sotomayor wrote in the decision. “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.”
Justice Elena Kagan, one of the two dissenting judges, expressed concern over the decision stifling creativity and expression. “Warhol is a towering figure in modern art not despite but because of his use of source materials,” Kagan wrote. “His work — whether Soup Cans or Brillo Boxes or Marilyn and Prince — turned something not his into something all his own. Except that it also became ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture.”
The Supreme Court’s focus on the commercial purposes of the work and not the creativity in the transformation could have implications in future cases. Richard Prince, who the New York Times calls the “art world’s most famous copiers” alongside Warhol, is being sued for using photographs in a series called New Portraits that depicts those images as if on an Instagram post. Some experts, however, describe the Warhol decision as too narrowly focused on the market use to play a large role.