For years, Andy Warhol and Richard Prince were known as two of the art world’s most famous copyiers, boundary-pushing appropriators whose use of other people’s images in their work has come under scrutiny in litigation as the blurry boundary of copyright law is constantly redrawn. .
Last week, the Supreme Court resolved a major copyright dispute involving a Warhol that many experts believed would have a spillover effect on other cases, including a couple involving Prince that are currently playing out in federal court in New York.
But in the end, the court’s Warhol decision seemed rather narrow, the experts said, as the judges weighed not so much how much of another work an artist is allowed to copy, but instead ruled on what kind of use such a work can be put to. .
Warhol, who died in 1987, had done a series of serigraph portraits of the rock star Prince, based on a photograph of the musician taken by Lynn Goldsmith. One of the serigraphs was licensed through his estate Condé Nast in 2016 to illustrate the cover of a special song about the musician’s legacy.
When Goldsmith sued claiming its copyright had been violated, Warhol’s estate argued that it was entitled to the so-called fair-use defense. The estate’s attorneys suggested that Warhol’s treatment of the image, which had been colored, cropped, and shaded in places, had been “transformative,” a term the courts have used to define how much change the appropriating artist must make to the underlying work to pass.
Many thought that the latest Supreme Court ruling could clarify more clearly what qualifies a work as transformative. But the judges chose to focus on how the Warhol portrait had been used, which was to illustrate an article about the musician. The court ruled that such use did not sufficiently distinguish the “purpose and character” of Goldsmith’s photo, which had been licensed to Vanity Fair years earlier to illustrate an article about Prince.
“It was the licensing use, not the creative use, that was at issue,” said Michael W. Carroll, a professor at the American University Washington College of Law.
In the 7-2 Warhol decision, the Supreme Court majority emphasized that in the end, both Goldsmith and the Warhol Foundation were competing for essentially the same commercial advantage. Both the photo and print were sold to a magazine and used as art to accompany articles about Prince, and as such they had “essentially the same commercial purpose,” according to the court. Put another way, the Warhol print, the majority said, was used as “a commercial alternative” to Goldsmith’s photo.
In a rare recording, the court published several images as part of its judgment, including Goldsmith’s photo and Warhol’s orange serigraph used for a cover of a Condé Nast special issue about Prince in 2016.
In his concurring opinion, Judge Neil Gorsuch suggested that the court’s ruling was tailored to the specific case before the court and that if the Warhol Foundation had attempted to use its art in any other way, it could have been considered fair.
“For example, if the Foundation had attempted to display Mr. Warhol’s image of Prince in a not-for-profit museum or a for-profit book commenting on 20th-century art, the purpose and nature of that use might indicate on fair use,” he wrote. “But those cases are not these.”
Furthermore, in its summary of Judge Sonia Sotomayor’s majority opinion, the court said that simply conveying “a new meaning or message” through an artistically altered work was in itself “not sufficient justification” for protection.
In her dissenting opinion, Judge Elena Kagan, joined by Chief Justice John G. Roberts Jr., argued that the majority erred in more or less brushing aside the question of whether Warhol’s works were artistically transformative.
“That’s a shift in how the court previously thought about fair use,” said Jonathan Y. Ellis, co-chair of the McGuireWoods appeals and litigation team. The Supreme Court decision, he added, “places less emphasis on creating a work,” and appears to be moving lower courts away from transformation as the most essential legal touchstone.
The question of transformation remains central to Richard Prince’s affairs. In 2013, Prince was at the center of a closely watched case that set a somewhat ambiguous precedent for determining fair use. Now he’s back in court defending an installation called “New Portraits,” in which he printed several Instagram photos onto large canvases and added his own Instagram-esque comments underneath. Two of the photographers who reproduced photos on the canvases have filed a lawsuit.
Lawyers for Richard Prince, like the Warhol Foundation, have argued that their client could do so under the fair use defense and that the artist’s work had been transformative.
But earlier this month, a Manhattan federal judge denied his requests for a preliminary injunction that would have ended the case, finding that his art had only altered, not transformed, the photos he had copied, and so the case had fallen before the court. court could be brought.
Brian Sexton, an attorney for Richard Prince, said that in its Warhol decision, the Supreme Court “went to great lengths” to make it clear that its findings were “limited to a single licensing dispute.”
“Since Richard Prince creates individual paintings and does not license his works, the holding in Warhol clearly does not apply to his New Portraits process,” he said.
More broadly, he added: “The concern among artists about the Warhol Foundation’s decision is that some of the regressive fair use language used to arrive at this very specific and limited statement about a commercial license, will be applied to individual works of art, and will lead to more confusion.”
A lawyer for one of the plaintiffs in the Prince case declined to comment because the case is still ongoing.
Experts said the court ruling in the Prince cases seemed to focus more on questions about the creative intent behind the art than how Prince ended up using it.
Bart Lazar, who specializes in copyright law, said the Warhol decision seemed to prioritize more pragmatic concerns about market competition between an artwork and the underlying photograph.
Nevertheless, it’s possible, the experts said, that the Supreme Court’s ruling could prompt plaintiffs suing Richard Prince to try to fine-tune their arguments against the potential for similar commercial uses of the photographs and the artwork.
And the scholars agreed: Just days after the Supreme Court ruling, there is still much to untangle.
“I think it will take some time, as we see this happening in the lower courts, before we understand the full implications of the opinion,” said Laura Heymann, a William & Mary Law School professor who specializes in intellectual property law. .
Professor Carroll said he was also interested to see how the decision will play out, suggesting interpretations may not be uniform. “It is now up to the lower courts to interpret how broadly the opinion should be read,” he said. “Is it really just about competitive licensing, or is it more generally about making derivative works? I think what you’ll see is lower courts reading it both ways, and eventually this issue will make its way back to the Supreme Court.
