On Monday, March 28, the Supreme Court agreed to hear a copyright case about Andy Warhol’s artwork that will evaluate the scope of the fair use defense, which permits a party to use a copyrighted work without the owner’s permission.
Warhol—a prominent artist known for his silkscreen paintings—took inspiration from a black and white image of musician Prince and created several silkscreen images portraying Prince against an orange background (the “Orange Prince series”).
The original black and white image that Warhol used to create the series was taken by Lynn Goldsmith in 1981. Goldsmith—renowned celebrity portrait photographer— captured the superstar in 1981, early in Prince’s career and before he released the hit album “Purple Rain” in 1984. Goldsmith learned of Warhol’s images after Prince’s death in 2016 when Vanity Fair published a special issue celebrating Prince’s life using Warhol’s images.
Shortly thereafter, the Andy Warhol Foundation for the Visual Arts sued Goldsmith asking a New York federal court to declare that the Orange Prince series did not infringe on Goldsmith’s copyright. In 2019, the district court ruled in favor of the Warhol Foundation after finding that Warhol had transformed the singer in the photograph “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But the U.S. Court of Appeals for the Second Circuit disagreed and reversed the district court’s decision, stating that the district court assumed “the role of art critic” by seeking “to ascertain the intent or meaning of the works at issue.”
The Warhol Foundation took the case to the Supreme Court, arguing that if the Second Circuit’s decision stands, it will chill artistic expression, create “a sea-change in the law of copyright,” and cast “a cloud of legal uncertainty over an entire genre of visual art.”
The Supreme Court will now determine whether Warhol violated copyright law. Specifically, the Court will decide whether Warhol “meaningfully transformed” the original black and white photo of Prince to create a new work of art protected by the fair use doctrine or whether Warhol infringed on Goldsmith’s copyright. The Court is expected to hear arguments this fall.