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SCOTUS Finds Andy Warhol Foundation Liable for Copyright Infringement

By Vaidehi Mehta, Esq. | Last updated on

On May 18, the U.S. Supreme Court issued a ruling against the Andy Warhol Foundation for the Visual Arts in a 7-2 decision that may have wide-ranging implications for artists around the nation. The case of Andy Warhol Foundation for the Visual Arts v. Goldsmith arose as a result of an unauthorized reprinting in Vanity Fair magazine of a photo of recording artist Prince, after his death in 2016. The plaintiff, celebrity photographer Lynn Goldsmith, alleged that magazine's parent company, Condé Nast, had no right to reproduce an image in violation of her copyright. Seven of the Court's Justices were inclined to agree.

A Prized Prince Photo

Vanity Fair originally purchased a license to print a photo that Lynn Goldsmith took of the artist Prince back in 1984 as a companion to an article on the "High Priest of Pop." Prince was still a lesser-known artist at the time—nowhere near the household name he'd become later in his career—so Goldsmith only received $400 for a one-time use of her photo.

Later that same year, Condé Nast commissioned Andy Warhol to make an illustration of Prince for one of their publications.

Lynn Goldsmith has been many things in her career. She's been a recording artist, a film director, and an author, though she's best known for her work as a photographer. Warhol obliged. Using Goldsmith's image as a base, Warhol created a series of 16 different illustrations he called his "Prince Series," one of which found its way into another Vanity Fair article published that November.

But the problem that SCOTUS ruled on didn't arise until more than 30 years later.

Posthumous Print Makes Problems

After Prince passed away in 2016, Vanity Fair published a special edition titled "The Genius of Prince." Condé Nast obtained a license to use one of the Warhol Foundation's images from the "Prince Series" to use on the cover of the magazine. But they didn't attribute the image to Goldsmith—only to the Foundation.

When Goldsmith saw the photograph without her name, she contacted the Andy Warhol Foundation saying she believed they had committed copyright infringement in licensing her image to Condé Nast, and that she intended to pursue legal action. In response, the Foundation filed a lawsuit in the Southern District of New York, referring to Goldsmith's threat of legal action as a "shakedown." Goldsmith stuck to her guns and proceeded to file her own lawsuit, counter-claiming that the Foundation had committed copyright infringement.

Foundation has licensed out use of the "Prince Series" thousands of times over to many different entities, while Goldsmith claims she has only done so with the image in question a handful of times.

The federal court in New York decided in the Foundation's favor, granting the Foundation's request that Goldsmith be blocked from pursuing future litigation. The Second Circuit Court of Appeals then reversed that ruling, and over the years, the case made its way to the U.S. Supreme Court. Last week, SCOTUS decided in Goldsmith's favor. The crux of the matter at issue in the case came down to whether the Foundation's reuse of the image constituted "fair use," under what is known as the "fair use doctrine."

Failing Under "Fair Use Doctrine"

Under the fair use doctrine, copyrighted material can be used in certain ways by artists, musicians, and other creatives without needing to obtain a license to do so. It's the reason so many YouTubers and live-streamers can show footage of games or TV shows on their channel without getting sued into oblivion. But fair use doesn't just mean anyone can use copyrighted material however they want. Courts usually only rule in favor of the party reusing the copyrighted material in cases when the copyrighted material is: (1) materially changed, (2) used for academic or satirical purposes, or (3) used for commentary.

Speaking for the majority, Justice Sonia Sotomayor indicated that for the fair use doctrine to apply, the reproduction of Goldsmith's image by Condé Nast would need to be "sufficiently transformative" from its original purpose. The original image had been produced and licensed for commercial purposes—much in the way it was used in 2016. The majority of the Justices found that the Foundation's issuing of a license to Condé Nast did not constitute an enterprise based on any purpose beyond "commercial," meaning that it was not "sufficiently transformed." SCOTUS thus decided that the Foundation was not shielded from liability for copyright infringement, and so their use of the image was not protected under the fair use doctrine.

An Obstacle to Artistic Progress?

The Foundation's president, Joel Wachs, has said that the Foundation "respectfully disagrees with the Court's ruling" and that it "will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment." Throughout the case, the Foundation has argued that its use of the image is protected by the fair use doctrine.

Justice Elena Kagan warned that ruling in favor of Goldsmith would "stifle creativity of every sort" and "thwart the expression of new ideas and the attainment of new knowledge." In short, she claimed it will "make our world poorer." The opinion notes that the Copyright Act encourages creativity by giving exclusive rights to the creator to reproduce a work for certain limited periods of time. This is also reflected in the language of Article 1 of the U.S. Constitution, which gives Congress the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Andy Warhol's sampling of Prince's photo is a practice all too common in the arts; particularly in the music industry, hip hop and electronic musicians sample other artist's work in their own tracks all the time. Some experts are concerned that the recent SCOTUS ruling could have far-reaching negative consequences for any type of art that uses sampling.

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