Did the Supreme Court ‘over-protect’ Lynn Goldsmith’s photo of Prince in copyright ruling against Andy Warhol? by Tanner Stening May 18, 2023 Share Facebook LinkedIn Twitter American Pop artist Andy Warhol sits in front of several paintings in his ‘Endangered Species’ at his studio, the Factory, in Union Square, New York, New York, April 12, 1983. Photo by Brownie Harris/Corbis via Getty Images The Supreme Court on Thursday ruled that Andy Warhol’s iconic silkscreen images of Prince that were based on photographs taken of the musician violated copyright law. In a 7-2 vote, the high court said that the Andy Warhol Foundation’s use of photographer Lynn Goldsmith’s headshot of Prince, taken in 1981, infringed on her copyright. The decision has vast implications for the so-called “fair use” defense in the world of visual art, says Jeremy R. Paul, a professor of law and former dean of Northeastern’s School of Law. Justice Elena Kagan and Chief Justice John Roberts were the two dissenting votes. “I think Justice Kagan has this case right,” Paul says. “It’s your classic case where both sides have strong policy-based arguments. The photographer’s position is that this is my original work, and there need to be incentives to creative original works. That’s certainly true. “The Warhol [foundation’s] position is that, once things have been created, we ought to have robust trade, expansion and new uses, and if we overprotect them—as I think the court did in this case—we’ll constrict the ability of people to riff on things, which is what jazz [improvisation] is all about, for example,” Paul says. Northeastern University Professor of Law Jeremy Paul. Photo by Alyssa Stone/Northeastern University Vanity Fair used Goldsmith’s portrait of Prince as an “artist reference” for Warhol’s work, which the magazine commissioned for one of its issues. She was paid a $400 licensing fee and credited for her work, The New York Times reports. When Prince died in 2016, the magazine’s parent company, Condé Nast, published a special issue devoted to the artist, and paid the foundation $10,250 to use another of Warhol’s 16 renderings on its cover. According to The New York Times, Goldsmith “received no money or credit.” Kagan wrote of the majority’s ruling: “It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.” The case centers on the “fair use” doctrine, considered a cornerstone of American copyright law, which permits the unlicensed use of copyright-protected works in certain circumstances. The doctrine stipulates that the “purpose and character” of the use matters when determining fair use of copyrighted work, as well as whether such unlicensed use impacts the market or value of the work. As such, courts are more likely to find nonprofit educational and noncommercial uses legally “fair.” “This is professors using small snippets of published works in their classes, for example, or book reviewers wanting to quote small excerpts from a book in their reviews,” Paul says. Transformative uses, which “add something new” such that the character of the work is sufficiently altered or different, are typically considered fair as well. The Supreme Court in Campbell v. Acuff-Rose Music, Inc. said that those transformations are legally valid if they amount to “new expression, meaning or message.” A federal judge ruled in 2019 that Warhol’s alterations to Goldsmith’s portraits “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” Writing for the majority, Justice Sonia Sotomayor said that the foundation’s unlicensed use and the original photograph “share substantially the same purpose,” adding that “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.” “It will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work,” Sotomayor wrote. “Recall, payments like these are incentives for artists to create original works in the first place. Nor will the Court’s decision, which is consistent with longstanding principles of fair use, snuff out the light of Western civilization, returning us to the Dark Ages of a world without Titian, Shakespeare, or Richard Rodgers.” While he doesn’t fault “either side of the debate,” Paul says that the ruling could put a damper on future creativity, echoing the sentiment Kagan expressed in her dissent. The ruling comes amid new concerns about the impact AI-generated content might have on originality, copyright and creativity more broadly. It also comes after another high-profile decision that cleared musician Ed Sheeran of a copyright claim that had been the source of much consternation in the art world. Tanner Stening is a Northeastern Global News reporter. Email him at firstname.lastname@example.org. Follow him on Twitter @tstening90.