After the Warhol Decision, Another Major Copyright Case Looms


For years, Andy Warhol and Richard Prince have been known as two of the art world’s most famous copiers, boundary-pushing appropriators whose use of other people’s images in their work has been scrutinized in court cases as the blurry line of copyright law is continually redrawn.

Last week, the Supreme Court resolved a major copyright dispute involving a Warhol that many experts thought would have a spillover effect on other cases, including a pair involving Prince that are currently playing themselves out in federal court in New York.

But in the end, the court’s Warhol decision appeared to be fairly narrow, the experts said, as the justices did not so much weigh in on how much of another work an artist can copy, but ruled instead on what sort of use such a work can be put to.

Warhol, who died in 1987, had created a series of silk-screen portraits of the rock star Prince that were based on a photograph of the musician taken by Lynn Goldsmith. One of the silk-screens was licensed by his estate to Condé Nast in 2016 to illustrate the cover of a special issue about the musician’s legacy.

When Goldsmith sued, asserting her copyright had been infringed, the Warhol estate argued that it was entitled to the so-called fair-use defense. The estate’s lawyers suggested that Warhol’s treatment of the image, which was colored, cropped and shaded in certain places, had been “transformative,” a term the courts have adopted to define just how much change the appropriating artist must bring to the underlying work to pass muster.

Many thought the latest Supreme Court decision might more clearly delineate what qualifies a work as transformative. But the justices chose instead to focus on how the Warhol portrait had been used, namely to illustrate an article about the musician. The court found that such a use was not distinct enough from the “purpose and character” of Goldsmith’s photo, which had been licensed to Vanity Fair years earlier to help illustrate an article about Prince.

“It was the licensing use, not the creative use, that was at issue,” said Michael W. Carroll, a professor at American University Washington College of Law.

In the 7-2 Warhol decision, the high court’s majority emphasized that, in the end, both Goldsmith and the Warhol Foundation were essentially competing for the same commercial benefit. Both the photograph and the print were being sold to a magazine and used as art to accompany articles about Prince, and as such they shared “substantially the same commercial purpose,” the court said. Put another way, the Warhol print, the majority said, was being used as “a commercial substitute” for Goldsmith’s photograph.

In a rare inclusion, the court published several images as part of its opinion, including Goldsmith’s photograph and the orange silk-screen by Warhol that was used for a cover of a Condé Nast special edition on Prince in 2016.

In his concurring opinion, Justice Neil Gorsuch suggested that the court’s ruling was tailored to the specific case before the court and that if the Warhol Foundation had sought to use his art in some other way, it might have been considered fair.

“If, for example, the Foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use,” he wrote. “But those cases are not this case.”

Furthermore, the court said in its summary of Justice Sonia Sotomayor’s majority opinion, that simply conveying “a new meaning or message” through an artistically altered work was, on its own, “not justification enough” to garner protection.

In her dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., argued that the majority had erred in more or less brushing aside questions of whether Warhol’s works were artistically transformative.

“That’s a shift in the way the court has previously thought about fair use,” said Jonathan Y. Ellis, a co-chairman of McGuireWoods’ appeals and issues team. The high court’s decision, he added, “puts less emphasis on the creation of a work,” and seems to direct lower courts away from transformation as the most essential legal touchstone.

The question of transformation remains central to the Richard Prince cases. In 2013, Prince was at the center of a closely watched case that established a somewhat ambiguous precedent for determining fair use. Now he is back in court, defending an installation called “New Portraits” in which he printed several Instagram photos on large canvases, and added his own Instagram-style comments below them. Two of the photographers who took photos reproduced on the canvases have sued.

Lawyers for Richard Prince have argued, as the Warhol Foundation did, that their client could do this under the fair-use defense and that the artist’s work had been transformative.

But earlier this month, a federal judge in Manhattan denied his motions for summary judgment that would have ended the case, finding that his art had merely modified the photographs he had copied, not transformed them, and thus the case could go forward to trial.

Brian Sexton, a lawyer for Richard Prince, said the Supreme Court, in its Warhol decision, “went to great pains” to make clear that its findings were “limited to a single licensing dispute.”

“As Richard Prince makes individual paintings and does not license his works, the holding in Warhol is clearly inapplicable to his New Portraits litigation,” he said.

More broadly, he added: “The concern among artists with the Warhol Foundation decision is that some of the regressive fair use language used in reaching this very specific and limited ruling on a commercial license will be applied to individual works of art, and lead to more confusion.”

A lawyer for one of the plaintiffs in the Prince matter declined to comment because the case is ongoing.

Experts said the district court ruling in the Prince cases did appear to focus more on questions about the creative intent behind the art than on how Prince ultimately used it.

Bart Lazar, who specializes in copyright law, said the Warhol decision seemed to prioritize more pragmatic concerns about market competitiveness between an art work and the underlying photograph.

Nonetheless, it is possible, the experts said, that the Supreme Court ruling could prompt the plaintiffs suing Richard Prince to try to narrowly tailor their arguments to highlight the potential for any similar commercial uses of the photographs and the artworks.

And the scholars agreed, just days after the Supreme Court’s ruling, there is still a lot to untangle.

“I think it will be some time, as we see this play out in the lower courts, before we understand the full implications of the opinion,” said Laura Heymann, a professor at William & Mary Law School who specializes in intellectual property law.

Professor Carroll said he too was interested in seeing how the decision will play out, and suggested the interpretations may not be uniform. “It now falls to the lower courts to interpret how broadly to read the opinion,” he said. “Is it really just about competitive licensing use, or is it more broadly about creating derivative works? I think what you’ll see is lower courts reading it each way, and then eventually this issue is going to find its way back to the Supreme Court.”

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