Picture the U.S. Supreme Court deciding a controversy between a photographer and the Andy Warhol Foundation surrounding the use of a photo of Prince.
In October 2022, the Supreme Court did just that. And it recently issued its opinion deciding the limited issue before it in the ongoing litigation between photographer Lynn Goldsmith and the Andy Warhol Foundation for Visual Arts, Inc. (“AWF”). We all know Prince could never steal from another. Still, Justice Sotomayor’s recent majority opinion tells us how we’re all just the same under the Copyright Act, and not even Andy Warhol is entitled to a “celebrity-plagiarist privilege” under the guise of “fair use.”
A Tale of Two Princes?
In 1981, Lynn Goldsmith took a series of photographs of then-up-and-coming musician Prince for Newsweek magazine. Goldsmith retained the photos Newsweek did not use and held copyright in those photos. Three years later, Goldsmith licensed one of those photographs to Condé Nast as an “artist reference” for an illustration that would appear once. Goldsmith received $400 and a source credit. The artist who would “reference” Goldsmith’s photo was Andy Warhol, and his altered, purple-hued version of it reins in a 1984 edition of Vanity Fair.
After Prince tragically lost his life to a fentanyl overdose in 2016, numerous publications released commemorative magazines dedicated to the late musician. People magazine paid Goldsmith $1,000 to use another one of her copyrighted photos of Prince for a special Prince issue. To Goldsmith’s surprise and dismay, the cover of publisher Condé Nast’s special Prince issue featured another Warhol variation like the 1984 image, but this time in orange.
Goldsmith was not paid or credited for the 2016 Condé Nast image as she did not even know Warhol created an entire series of pictures along with the Vanity Fair image she did not know about. After Goldsmith contacted AWF (the entity that manages the use of Andy Warhol’s art and intellectual property) and learned AWF licensed the “Orange Prince” for $10,000, AWF and Goldsmith sued each other to determine whether the work infringed on Goldsmith’s copyright in the original photograph.
What is “fair use”?
Nestled within the complexities of copyright law is a concept known as “fair use,” which is a defense to copyright infringement. The idea behind fair use is the limited and transformative use of copyrighted material is permissible in specific situations (i.e., education and parody) even without explicit permission from the rights holder. This doctrine is to strike a delicate balance between protecting the rights of creators (or at least copyright holders) and fostering creativity, criticism, education, and innovation.
In determining whether a particular use qualifies as fair use, courts consider four factors:
1. The purpose and character of the use. This factor gauges whether the use is “transformative,” meaning it adds new meaning or creates something new from the original work.
2. The nature of the copyrighted work. This factor weighs whether it is factual or creative in nature.
3. The amount and substantiality of the portion used. This factor assesses the quantity and significance of the portion of the copyrighted work used.
4. The effect of the use on the market for the original work. This factor analyzes the potential impact of the use on the market value or likely demand for the original work.
What about Warhol?
The legal battle between Goldsmith and AWF is still ongoing. The Supreme Court’s opinion wades into the murky waters of fair use with a detailed analysis of one of the four factors courts use to evaluate fair use. Specifically, “the purpose and character of the use.”
In the AWF/Goldsmith litigation, the district court accepted AWF’s argument that “Orange Prince” is “immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.” While the entire fair use issue has yet to be decided, the Second Circuit and the Supreme Court disagreed that the “purpose and character” factor favors AWF’s “fair use” defense. The Court found the identifiably “Warhol” -ness of “Orange Prince” did not grant Mr. Warhol an inherently “transformative” new meaning. Instead, the commercial use of a portrait for a magazine article means the purpose and character of Goldstein’s underlying photo and “Orange Prince” are largely similar—despite the identifiably “Warhol” nature of “Orange Prince.”
The Goldsmith/AWF case is an emblematic example of intellectual property battles that can emerge when artists use another’s work as a base but fail to attribute the underlying work correctly.
If you are involved in an intellectual property dispute, contact us to learn how we can help.