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  • Writer's pictureRolanzo White, Esq.

The Andy Warhol decision

In a landmark ruling last Thursday, the U.S. Supreme Court upheld that Andy Warhol's portraits of music legend Prince were not protected under copyright's fair use doctrine. The ruling affirms a decision made by the Second Circuit and concludes that Warhol's work shared the same commercial intent as the original photograph of Prince.

In a 7-2 verdict, the Supreme Court agreed with photographer Lynn Goldsmith's claim that Warhol's "Orange Prince" was not a fair use of her copyrighted photograph of Prince. Consequently, the court maintained the circuit court's ruling that Warhol's artwork was an infringing derivative of the original.

The Andy Warhol Foundation had defended Warhol's artwork, arguing it was "transformative" of Goldsmith's work as it provided the image with "new meaning."

I agree with the majority's opinion here (with caution); while Warhol's renditions of Goldsmith's images of Prince are striking, they don't appear to be transformative enough to be deemed fair use. Although I can't comment on Warhol's subjective interpretation or that of each individual viewer, it's crucial to set a high bar to safeguard the rights of photographers while encouraging innovation.

An additional consideration is the commercial use of both images. Both Goldsmith's photograph and Warhol's derivative were used to sell magazines. "As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and [the Andy Warhol Foundation's] copying use of it share substantially the same purpose," Justice Sonia Sotomayor wrote for the majority, highlighting that both uses were commercial.

Justice Elena Kagan and Chief Justice John Roberts, who disagreed with the majority, expressed their concern over the ruling's implications for other artists. They argued that Warhol's work had creatively deviated from Goldsmith's photo. Justice Kagan questioned, "If Warhol does not get credit for transformative copying, who will?" She further warned that the ruling could adversely affect lesser-known artists who cannot benefit from fair use.

I appreciate Justice Kagan's concerns as Andy Warhol was often seen as an exemplar of transformative fair use. This decision certainly tightens the restrictions on derivative works in the future. However, in their concurrence, Justices Brown and Gorchich tried to minimize the decision’s potential implications by restricting it to this specific case, not to all of Warhol's works.

This ruling may prompt artists to seek licensing agreements before investing significant time and resources into works that might not meet this revised standard of transformative fair use. This could shape the landscape of artistic innovation and intellectual property rights in the years to come.

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