WASHINGTON — Two flamboyant pop culture icons take center stage at the staid,tradition-bound Supreme Court on Wednesday as the justices weigh whetherartist Andy Warhol infringed on the copyright of a photographer’s image of therock star Prince when making a series of his signature silkscreen print.
During the oral argument, the court will consider a legal question ofconsiderable interest to people in all kinds of creative industries, includingtelevision, film and fine art, on how to define whether new work based on anexisting one is “transformative” — meaning it does not violate copyright law.
While Warhol, one of the leading pop artists of the 1960s, has been creditedwith the expression that everyone in the future will get 15 minutes of fame,the oral argument could last for as long as two hours.
The original Lynn Goldsmith photograph of Prince and Andy Warhol’s portrait ofthe musician. (Lynn Goldsmith; Andy Warhol Foundation for the Visual Arts)
Noted photographer Lynn Goldsmith sued over Warhol’s use of her 1981photograph of then-rising star Prince before he attained global fame on theback of hits like “Little Red Corvette” and “When Doves Cry.” As part of anarrangement with Vanity Fair magazine three years later, Warhol created aseries of silkscreen prints as well as two pencil sketches based onGoldsmith’s image. While the original photo, a portrait of Prince, was blackand white, the silkscreen prints superimposed bright colors over a croppedversion of the original photo. The style was similar to other famous Warholworks, such as his portraits of Marilyn Monroe.
Under a license it had obtained from Goldsmith, Vanity Fair used a Warholillustration based on the photo in its November 1984 issue without anyproblems arising. But Goldsmith said she was not aware that Warhol had createdother images that were not licensed, a fact she only became aware of afterVanity Fair publisher Conde Nast used a different image as part of a 2016Prince tribute immediately after the rock star’s death.
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Warhol himself had died in 1987, and the relevant works and copyright to themare now held by the Andy Warhol Foundation, which permitted Vanity Fair to usethe image in 2016. Goldsmith was not credited.
The following year the issue ended up in court, with Goldsmith and thefoundation suing each other to determine whether Warhol’s image constitutedfair use.
Images from Andy Warhol’s series on the musician Prince. (Andy WarholFoundation for the Visual Arts)
In 2019, a federal judge ruled in the foundation’s favor, saying that Warhol’simages were transformative because, while Goldmith’s photo showed a“vulnerable human being,” the Warhol prints depicted an “iconic, larger-than-life figure.”
The foundation sought Supreme Court review after the New York-based 2nd USCircuit Court of Appeals ruled in favor of Goldsmith in March 2021. Theappeals court faulted the district court for focusing on the artist’s intent,saying a judge “should not assume the role or art critic.” Instead, a judgemust examine whether the new work is of a completely different character tothe original, the court said. It must, “at a bare minimum, comprise somethingmore than the imposition of another artist’s style on the primary work,” thecourt added.
Various interested parties have filed briefs advising the justices on whatapproach to take, including movie and music industry groups, educationalinstitutions and individual artists. (Universal Pictures, a division of NBCNews’ parent company NBCUniversal, is a member of the Motion PictureAssociation, which filed a brief in the case in support of neither party.)
The parties’ approach to the legal question depends in part on to what extenttheir work relies on protecting their own copyrighted material as opposed tomaking fair use of other people’s copyrighted content.
A relevant Supreme Court precedent cited by both sides is a 1994 ruling inwhich the court held that it was fair use when rap group 2 Live Crew created asong called “Pretty Woman” that was a parody of Roy Orbison’s “Oh, PrettyWoman. ”
Like the parody song, Warhol’s additions created something new that conveyed adifferent message, the foundation’s lawyers argue.
Goldsmith’s lawyers point to other language in the 2 Live Crew ruling thatsaid a fair use argument is undermined if there is a risk that the new workwill supersede the original and undercut its market value.
This article was originally published on NBCNews.com