The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for a series of images of the musician, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.
The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
In dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., wrote that the decision “will stifle creativity of every sort.”
“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
The portrait of Prince was taken by Lynn Goldsmith, a successful rock photographer. In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.
In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, masklike appearance.” Vanity Fair ran one of them.
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.
Litigation followed, much of it focused on whether Warhol had transformed Ms. Goldsmith’s photograph. The Supreme Court has said a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”
The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 21-869, concerned the limits of the fair-use defense, which allows copying that would otherwise be unlawful if it involves activities like criticism and news reporting.
Lower courts differed about whether Warhol’s alterations of the photograph transformed it into something different. Judge John G. Koeltl of the Federal District Court in Manhattan ruled that Warhol had created something new by imbuing the photograph with fresh meaning.
But a three-judge panel of the U.S. Court of Appeals for the Second Circuit said that judges should compare how similar the two works are and leave the interpretation of their meaning to others.
“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” Judge Gerard E. Lynch wrote for the panel. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”
