Immediately clear after the stunning death of Prince, at age 57 in 2016, was that the world had lost a brilliant artist. What has taken years to unfold, from a magazine cover to the Supreme Court, is a debate over creativity and free expression that has been framed as an existential fight over art itself.
The feud began in 2016 when the Andy Warhol Foundation licensed an image of Prince to Condé Nast for a special magazine commemorating the musician’s death. Lynn Goldsmith, whose photograph had served as Warhol’s template decades earlier, objected because she had licensed the picture for one-time use. The foundation then sued her, asking for a judgment that Warhol’s changes to the photograph were transformative and should be considered fair use.
A district court agreed. An appeals court did not.
Now the Supreme Court is preparing to issue its opinion on the case, after oral arguments in October and a flurry of amicus briefs from parties concerned about the ramifications.
The Warhol foundation has argued that the appeals court decision renders some existing artworks “presumptively unlawful” and “could lead to the removal of seminal works of art from the public sphere.” Goldsmith contends that the case is about the licensing of creative work, not about exhibiting art, and that a ruling against her would transform copyright law into “all copying, no right.”
The question of whether one work unfairly appropriates another is notoriously thorny. Lawyers, scholars and judges have grappled with subjective standards, with one recent decision noting the difference between art criticism and the law.
Only five previous fair-use cases — none involving fine art or photography — had been accepted for argument by the Supreme Court since 1984, according to records maintained by the U.S. Copyright Office. And whatever ruling emerges from the current case could have an effect, both sides agree, that ripples well beyond Goldsmith and the Warhol foundation.
In one amicus brief that supported neither party, nine of the country’s leading museums, including the Metropolitan Museum of Art, the Museum of Modern Art, the Art Institute of Chicago and the J. Paul Getty Museum in Los Angeles, stated that under the appeals court’s approach, works like a Vincent Van Gogh based on a Jean-Francois Millet photograph, and a Roy Lichtenstein derived from an image published by DC Comics “would not be considered transformative.”
Eight of the nine museums in the brief did not respond to a request for comment or declined to talk about any preparations for the Supreme Court decision, and there is no indication they are preparing to remove any artwork from galleries. The Brooklyn Museum, which was part of a separate brief, did not respond to requests for comment.
A spokeswoman for the Getty, Lisa Lapin, said the appeals court’s ruling had created a chilling effect and that “museums do much more than hang art on the wall,” citing the publication of books, films and newsletters.
Arnold Lehman, a director emeritus of the Brooklyn Museum, said he believed that the Warhol works were transformative and that museums needed to be “safe places for unsafe ideas.”
“Where would that ecosystem be today without artists’ abilities to synthesize and dream?” he wrote in an email. “Where would American art be without Jackson Pollock and Andy Warhol? Why would art museums exist if not to tell the story of imagination in the history of civilization?”
The dispute before the Supreme Court goes back to 1981, when Goldsmith, on assignment for Newsweek, took photos of Prince that the magazine never published. When Vanity Fair paid her $400 three years later to license one of them as an “artist reference,” it agreed to credit Goldsmith and use the resulting work in a single issue.
Warhol altered the photograph, and Vanity Fair ran an isolated image of Prince’s face, tinted purple against an orange background.
But Warhol, who died in 1987, had actually created 16 images based on Goldsmith’s photo: 12 silk-screen paintings, two screen prints on paper and two drawings. They were altered in various ways, notably with hand-drawn lines and layers of bright color. After Prince’s death in 2016, the Warhol foundation licensed one of those images — showing Prince’s face colored orange with an orange background — for $10,250 to Vanity Fair’s parent company, Condé Nast, which published it on the commemorative magazine’s cover.
Goldsmith complained to the foundation, which said she demanded a substantial sum of money and told the organization she might sue. Instead, it sued her, and the foundation has maintained that Warhol turned Goldsmith’s photograph into a work that provides a commentary on fame through “a flat, impersonal, disembodied, masklike appearance.”
The ensuing debate has focused largely on two of the four “fair use” factors set out in the Copyright Act: the purpose and character of Warhol’s use of Goldsmith’s photograph, and its effect upon the potential market for that picture.
Ami Vitale, an award-winning National Geographic contract photographer, said it was important to protect the rights of people engaged in “visual storytelling,” including those who spend long periods of time on projects and finance their work in part through licensing pictures.
“If we want people to make creative and innovative work we need to protect their intellectual property rights,” she wrote in an email, adding, “What is at stake here is the richness and vibrancy of our arts and culture.”
When Judge John G. Koeltl, of Federal District Court in Manhattan, ruled in favor of the foundation, he wrote that the Warhol series “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But a three-judge panel from the U.S. Court of Appeals for the Second Circuit, also in Manhattan, decided that the works in the Prince Series were “substantially similar” to the Goldsmith photograph and were not fair use.
Some museums said the appeals court had created confusion about how its ruling might be applied to artworks that incorporate others, and the Warhol foundation said a fear of lawsuits could prevent the display of “culturally significant” work. But a brief by Goldsmith’s lawyers called the foundation’s concerns “illusory,” saying that the law protects museum displays of works that are lawfully made.
Those filing briefs in support of the Warhol foundation include the Roy Lichtenstein Foundation, the Robert Rauschenberg Foundation, the artist Barbara Kruger and the artist, critic and curator Robert Storr.
Appropriation, variation and copying, Kruger and Storr emphasized in their brief, have played key roles in the development of art throughout history, from the Renaissance to Marcel Duchamp, who famously scrawled a mustache on a postcard of the Mona Lisa. The artists said the point was not to plagiarize but to reconstitute existing works.
Briefs supporting Goldsmith have come from the Screen Actors Guild-American Federation of Television and Radio Artists, the United States government and photographers’ groups that argued their work is in danger of being deterred.
A brief filed by the American Society of Media Photographers, the National Press Photographers Association and others argued that Warhol’s work was nothing other than a derivative portrait “that did not criticize, comment on or even credit the original.”
During oral arguments, several Supreme Court justices tried to tease out the legal distinctions in the case, sometimes making comparisons to Warhol’s depictions of Campbell’s Soup cans.
Chief Justice John G. Roberts Jr. said that while Goldsmith’s photograph shows what Prince looks like, the Warhol “sends a message about the depersonalization of modern culture and celebrity status.” Justice Brett M. Kavanaugh suggested, however, that there might be a significant difference between using the Warhol work in “a museum setting” and in a magazine.
“The use for Andy Warhol was not to sell tomato soup in the supermarket,” Justice Neil Gorsuch said at one point. “It was to induce a reaction from a viewer in a museum or in other settings.”
Whichever way the justices rule, it would appear that the works with the most at stake are those in the Prince Series.
Twelve have since been sold or auctioned, but the Warhol foundation retains ownership of the copyright in the series, according to one of its briefs. The foundation said that it did not know the whereabouts of five works and that seven others were held by collectors or galleries, though it did not respond to a request to identify them.
Four works were donated to the Andy Warhol Museum in Pittsburgh. Charlene Bidula, a spokeswoman for the museum, said by email that those images were still in the museum’s collection.
“They are not currently on view,” Bidula added. “And we have no immediate special plans associated with those particular works.”