The US Supreme Court today ruled 7-2 against the Andy Warhol Foundation for the Visual Arts regarding the question of whether Warhol’s use in his own work of a photo of the musician Prince by Lynn Goldsmith constitutes fair use. The decision had been hotly anticipated in the wake of the Court’s October 12, 2022, hearing of the case, which Goldsmith originally launched six years ago in New York State.
Goldsmith alleged that the late Pop artist illegally used her 1981 photo of the Royal Purple One in his 1984 “Prince Series,” a series of sixteen screen prints featuring the rock icon’s visage. Warhol created the series while on assignment for Vanity Fair, whose parent company, Conde Nast, licensed the photo from Goldsmith for onetime use, paying her $400. A single work from the series, Purple Fame, ran in the magazine, and the photographer was credited. According to Goldsmith, Warhol did not seek her permission to use her photo for the sixteen-part series, nor did he offer her credit or recompense. She was moved to sue when, following Prince’s untimely 2016 death, Vanity Fair ran another work from the series, Orange Prince, in a commemorative issue, paying the Warhol Foundation $10,000 for the privilege, but failing to credit or compensate Goldsmith.
A New York federal district judge originally ruled in favor of Warhol on the grounds that the Pop artist’s work was sufficiently transformative and thus fell within the realm of “fair use.” Goldsmith appealed and was allowed to continue her suit. “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,” wrote Judge Gerard Lynch of the US Court of Appeals for the Second Circuit. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”
Writing for the majority, Supreme Court Justice Sonia Sotomayor noted that “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
In a statement provided to Artforum, Warhol Foundation president Joe Wachs said: “We respectfully disagree with the Court’s ruling that the 2016 licensing of Orange Prince was not protected by the fair use doctrine. At the same time, we welcome the Court’s clarification that its decision is limited to that single licensing and does not question the legality of Andy Warhol’s creation of the Prince Series in 1984. Going forward, we will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment.”
The case has been closely watched, as it is expected to have wide-ranging repercussions for artists whose work is themed around appropriation. The decision comes just days after a court ruled that two suits against noted appropriation artist Richard Prince could proceed. Those cases involve Prince’s unauthorized use of Instagram photos, and likewise center on issues of transformation and fair use.