Supreme Court creates legal quagmire in copyright case: Warhol vs. Goldsmith

In a decision that has left legal experts puzzled, the Supreme Court released a ruling on May 18 that has sparked a heated debate within the art community.

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, centered around a copyright dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation, ultimately leading to a paradoxical outcome.

The court’s decision highlighted the complex interplay between fair use and commercial licensing. On one hand, it declared that the licensing of a silkscreened image based on Goldsmith’s photograph of musician Prince by the Andy Warhol Foundation to Condé Nast violated Goldsmith’s copyright.

However, the court also suggested that Warhol’s initial creation of the silkscreen might have qualified as fair use and therefore not infringed on Goldsmith’s copyright.

Delving beyond the legal intricacies of Justice Sonia Sotomayor’s opinion, it becomes apparent that a sympathetic sentiment towards Goldsmith, the working journalist, and a perceived resentment towards the Warhol Foundation influenced the court’s majority decision, leading to a problematic legal quagmire.

The ruling stemmed from a series of events dating back to 1984 when Vanity Fair paid Goldsmith $400 for a one-time license to use her photo of Prince. Subsequently, the magazine commissioned Warhol to transform Goldsmith’s photograph using his distinct artistic style of reformatting and silkscreening.

Warhol went on to create a “Prince Series” consisting of multiple prints and drawings based on Goldsmith’s photo. In 2016, following Prince’s death, Condé Nast paid the Warhol Foundation $10,000 to reproduce an image from the Prince Series without notifying Goldsmith.

Sotomayor’s opinion repeatedly emphasized that licensing fees are crucial for photographers like Goldsmith to make a living. Meanwhile, the Warhol Foundation, with its wealth and art world prestige, appeared unsympathetic in its handling of the situation.

The court’s sympathy for Goldsmith led to a troubling outcome. If Warhol’s Prince Series could be deemed “transformative” under fair use, then the works should be exempt from copyright infringement. Consequently, they would be considered independent creative works that could be used as the artist saw fit, regardless of whether they were sold or licensed for profit. Sotomayor’s back-and-forth approach to fair use created uncertainty within the art world, where appropriation and transformation have long been common practices.

Losing fair-use protection when a work is used for commercial purposes could have wide-ranging implications for artists, as noted by Justice Elena Kagan’s dissent. Determining when a transformative work transitions from fair use to infringement due to display, sale, or licensing arrangements would become a practical nightmare.

The court’s ruling hinged on the first fair-use factor concerning the purpose and character of Warhol’s use of Goldsmith’s photo. The Warhol Foundation argued that Warhol’s silkscreened images were undeniably transformative in terms of style and meaning. However, Sotomayor redirected the focus to one specific use: magazine licensing. The court refrained from expressing an opinion on the creation, display, or sale of the original Prince Series works, leaving the possibility that they could qualify as fair use. Justice Neil Gorsuch’s concurring opinion suggested that displaying Warhol’s silkscreens in nonprofit museums or in books commenting on 20th-century art might also be considered fair use.

As a result, artists, dealers, curators, and collectors must now navigate a case-by-case evaluation to determine if a work initially deemed fair use could lose that protection depending on how it is presented, sold, or marketed. Furthermore, if licensing such works is deemed copyright infringement, copyright owners like Goldsmith gain the power to prohibit their use entirely, leading to a significant impact on the art market.

While the court’s sympathy for Goldsmith is understandable, the ruling sets a problematic precedent. Sympathy votes do not always result in sound legal decisions, and in this case, it has generated uncertainty and potential consequences for artists and the art community at large.