10 December 2021CopyrightAlex Baldwin

Supreme Court asked to review Warhol ‘Prince’ judgment

The Andy Warhol Foundation for the Visual Arts has asked the US Supreme Court to review the Second Circuit’s ruling that the late artist’s “Prince Series” infringed a photographer’s copyright.

The petition for a writ of certiorari, submitted to the Supreme Court on Thursday, December 9, held that the circuit’s decision “casts a cloud of legal uncertainty over an entire genre of visual art” and could threaten a “sea-change in the law of copyright”.

In March, the Second Circuit ruled that Warhol’s image of Prince was too similar to Lynn Goldsmith’s original photograph, even though the artist altered the contrast and colouring and added artefacts to the image in order to create his own work.

The foundation holds that the Second Circuit’s decision has “drastic and harmful consequences” for free expression and “chills artistic speech”.

At the heart of the dispute rests the nature of artistic “transformation” and whether a court can “consider the meaning” of a piece of art. The case has made its way through district and appellate courts and now the US’ highest court is being asked for its view.

Playing ‘art critic’

The dispute began in 2017, when photographer Lynn Goldsmith found out that a photo she had licensed to Vanity Fair in 1981 was later used by Warhol as the basis of his pop-art “Prince Series”.

Vanity Fair had commissioned Warhol to create the series to use on its magazine cover. In his work, Warhol cropped Goldsmith’s photo to create the 16 images featured in that series.

The photographer threatened to file litigation against the Foundation if she was not paid a “substantial sum” by the Warhol Foundation for use of the image. This led the Foundation to sue Goldsmith in 2017.

Goldsmith then filed a counterclaim a few months later, claiming that Warhol’s cropping and alterations to her work were not “transformative”.

The  US District Court for the Southern District of New York handed the victory to the Warhol Foundation in July 2019. Judge John Koeltl held that the late artist’s work was transformative as Warhol’s interpretation portrayed Prince in a different light.

On appeal to the Second Circuit, the appellate court overturned the decision, with Judge Gerard Lynch stating: “The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue”.

The court ruled that Warhol’s alterations to the photograph did not constitute transformation.

‘Free artistic expression’

The petition, filed this week by Latham & Watkins, claimed that the Second Circuit’s decision contradicts decisions of the Ninth Circuit and other courts of appeals application of the “fair use” doctrine.

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.”

The petition highlights Supreme Court decisions in Google v Oracle (2021) and Campbell v Acuff-Rose Music (1994), as the basis that a work can be transformative and therefore qualify as fair use.

Andy Gass, a partner in Latham’s copyright practice, said: “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.”

The Foundation has asked the Supreme Court to consider question: “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material...or whether a court is forbidden from considering the meaning of the accused work where it ‘recognisably deriv[es] from’ its source material.”

Google v Oracle

Following a US Supreme Court Decision in Google v Oracle, the Foundation asked the Second Circuit for an en banc rehearing of the case by the full panel circuit judges.

The foundation referenced the Supreme Court’s decision in Google v Oracle, which held that Google could “precisely” copy software code but avoid infringement by using the code to create a “highly creative and innovative” alternative to the original.

However, the Second Circuit denied the Foundation’s request in September, claiming that the Supreme Court’s finding did not apply to the realm of visual arts.

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More on this story

3 July 2019   A ruling that a series of illustrations of late musician Prince by artist Andy Warhol are transformative and do not infringe a photographer’s copyright followed previous arguments made by the courts, said lawyers.
26 April 2021   The Andy Warhol Foundation wants a US federal court to revisit a decision finding that the late artist’s series of Prince images infringed a photographer’s copyright.
13 June 2022   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.