- The Supreme Court heard a case involving pop artist Andy Warhol’s iconic silkscreen prints of musician Prince.
- At issue is whether Warhol violated copyright law by relying on a photographer’s image of Prince for his art.
- The decision could have major consequences for both the art and legal worlds.
For lovers of ’80s culture, the Supreme Court on Wednesday was ripe for nostalgia as it heard a case involving pop artist Andy Warhol and a silkscreen print series he made of the musician, Prince, in 1984.
“Let’s say that I’m both a Prince fan — which I was in the ’80s,” Justice Clarence Thomas said as he began asking a question during the nearly one-and-a-half hours of spirited debate.
“No longer?” Justice Elena Kagan chimed in, met with a burst of laughter in the courtroom.
“Well,” Thomas paused, then replied with a chuckle, “only on Thursday nights,” before continuing his question about copyright infringement.
The dispute before the justices could have major consequences for both the art and legal worlds as the court reviews whether Warhol — who died in 1987 — violated copyright law through his work, in which he relied on celebrity photographer Lynn Goldsmith’s image of Prince.
As Prince rose to fame, Vanity Fair magazine commissioned Warhol in 1984 for an illustration to use in a story about the “Purple Rain” singer. Goldsmith’s agency licensed a black-and-white image of Prince she took during a 1981 photoshoot to Vanity Fair to use as a reference for the article at a $400 fee. Then came Warhol’s print, featured in the magazine’s “Purple Prince” issue, with Goldsmith credited in it.
Yet Goldsmith discovered decades later that Warhol had created another 15 silkscreen prints of Prince based on her image, and one of them was published by Vanity Fair’s parent company, Condé Nast, in a 2016 article honoring the famed singer after he died that same year. That triggered her claims of copyright infringement.
A legal battle ensued. A federal district court sided with the Andy Warhol Foundation, a nonprofit that handles Warhol’s works, ruling that the artist’s Prince series was accepted as “fair use” under US copyright law, or permitted for unlicensed use, because Warhol had “transformed” Goldsmith’s photo into something with a different message and meaning.
A federal appeals court reversed, writing that the lower court “should not assume the role of art critic” and Warhol’s print was not “transformative.”
The Andy Warhol Foundation has asked the Supreme Court to overturn that ruling.
“The stakes for artistic expression in this case are high,” attorney Roman Martinez of Latham & Watkins said Wednesday on behalf of the Andy Warhol Foundation, arguing that the pop artist’s work had conveyed a different message and meaning from Goldsmith’s.
A decision in favor of Goldsmith “would make it illegal for artists, museums, galleries and collectors to display, sell, profit from, maybe even possess, a significant quantity of works,” Martinez continued. “It would also chill the creation of new art by established and up-and-coming artists alike.”
Representing Goldsmith, attorney Lisa Blatt of Williams & Connolly pushed back on that assertion, telling the court that considering whether a work simply has a different message or meaning would strip photographers’ control over their images.
“That test would decimate the art of photography by destroying the incentive to create the art in the first place,” Blatt said, adding that if the court agrees with the Andy Warhol Foundation, “copyrights will be at the mercy of copycats.”
As the justices grappled with both sides of the issue, a majority of them did not appear particularly receptive to one over the other. They questioned how other art forms, including book-to-movie adaptions and cover songs, might be affected by the outcome of the case.
“It seems to me like your test, this meaning-or-message test, risks stretching the concept of transformation so broadly,” Justice Amy Coney Barrett told Martinez, name-dropping “The Lord of the Rings” books and movies to make her point.
Justice Samuel Alito raised concerns about what evidence courts are meant to rely on to determine the message or meaning of art works. “If you called Andy Warhol as a witness, what would he say?” he said.
Chief Justice John Roberts delved into the differences between Goldsmith’s and Warhol’s works, telling Blatt: “if you put them side-by-side, the message is not the same.”
“That’s a picture of Prince,” Roberts said of Goldsmith’s. “And this is a work of art sending a message about modern society,” he said of Warhol’s.
Fair-use cases on visual arts are “fairly rare” at the Supreme Court, Terry Kogan, a law professor at the University of Utah, told Insider ahead of Wednesday’s arguments. The justices are expected to hand down a ruling by June.
Kogan, who filed a legal brief in support of Goldsmith, arguing that courts should not consider subjective opinions of art when reviewing such cases, said he thinks the court will side with her.