13 June 2022CopyrightMuireann Bolger

Andy Warhol Foundation urges SCOTUS to overturn Prince ruling

The Andy Warhol Foundation has asked the US Supreme Court to reverse a ruling holding that artist Andy Warhol's artwork didn't make fair use of a photo of the musician Prince, arguing that the decision will inflict severe harm on free artistic expression.

The foundation filed the petition for a writ of certiorari to the SCOTUS on Friday, June 10, insisting that the ruling delivered a "cramped" reading of what makes a work transformative, and failed to apply the correct test for assessing ‘fair use’.


This case addresses whether Andy Warhol’s Prince Series makes a ‘fair use’ of copyrighted content in the original source photo on which it was based taken by photographer Lynn Goldsmith.

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.

In 2019, a federal court in New York held that Warhol’s works materially transform the originals and could permissibly reuse it.

However, the Second Circuit ruled in March 2021 that the modified images did not qualify as fair use, despite claims from the foundation that the work was transformative as the work portrayed Pince as an “iconic, larger-than-life” figure, compared to the “vulnerable human being” depicted in Goldsmith’s photograph.

The Second Circuit panel acknowledged that Warhol’s works have a materially different meaning than the source material, finding that it portrays Prince in a markedly different light.

But the court held that those distinctions make no difference, because the meaning of a work of art can’t be relevant to whether it makes a fair use of source material.

Google v Oracle

The foundation’s petition for certiorari now challenges that conclusion.

The foundation previously sought an en banc rehearing of the case by the full panel of Second Circuit judges, citing the Supreme Court’s April 2021 decision in Google v Oracle (2021), which expanded the scope of works which can be protected under fair use.

In its 6-2 ruling, the US Supreme Court ruled that Google’s use of Oracle’s programming code in creating the Android operating system was covered by the fair use doctrine.

According to the foundation, whether a work is transformative hinges on whether a work “adds something new”, rather than “whether it sufficiently stamps out traces of its source material”.

But in August 2021, Second Circuit said that Google v Oracle does not affect its prior ruling, stating that the context of that case was “unusual”, and that copyrights involving computer code make its conclusions “less applicable to contexts such as ours”.

In March this year, SCOTUS agreed to look at the ruling, and examine the application of the “fair use” doctrine.

The foundation’s petition this week held that the Second Circuit’s decision contradicts Supreme Court precedent setting out the parameters of the fair use doctrine, and conflicts with decisions of the Ninth Circuit and other courts of appeals applying that doctrine.

A transformative work

Also relying on Campbell v Acuff-Rose Music, (1994) in addition to Google, the petition argued that a work can be transformative—and qualifies as protected “fair use”—if it uses pre‑existing material to express a new and different meaning or message, regardless of whether their source material remains recognisable.

Law firm Latham & Watkins is representing the foundation.

Commenting on the petition, Roman Martinez, a partner in Latham’s Supreme Court and appellate practice, said: “We hope the Supreme Court will grant review in this case and reaffirm the importance of free artistic expression.

“The ‘fair use’ doctrine plays an essential role in protecting freedom of speech and advancing core First Amendment values. We hope the court will recognise that Andy Warhol’s transformative works of art are fully protected by law.”

Andy Gass, a partner in Latham’s copyright practice, added: “The ‘fair use’ doctrine has for centuries been a cornerstone of creativity in our culture. Our goal in this petition is to preserve the breadth of protection it affords for all—from the Andy Warhols of the world to those just embarking on their own process of exploration and innovation.”

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More on this story

29 March 2022   The US Supreme Court has agreed to hear arguments on whether Andy Warhol’s “Prince Series” infringed a photographer's copyright, the outcome of which could change the law on ‘far use’.
17 August 2022   Copyright case centres on controversial doctrine | The US government urged the Supreme court to back a ruling of infringement | But the Andy Warhol Foundation for the Visual Arts claims work is ‘transformative’.
11 October 2022   US Supreme Court to hear arguments in landmark copyright case | Lawyers offer insights into what’s at stake for IP | Decision will affect many creative industries.