On the 18^th of May 2023, the US Supreme Court published its ruling in the Andy Warhol Foundation v Goldsmith case. The ruling, on a 7-2 majority, upheld the lower court ruling that the Prince Silkscreen created by Andy Warhol in 1984, for which Goldsmith’s photos were the basis of, infringed on Goldsmith’s copyright.

The case is an important one for the industry at large, as the implications of the ruling apply not only to the art world, but to most entertainment, as the defence put forth by the Andy Warhol Foundation was that Orange Prince did not infringe Goldsmith’s copyright due to it falling under fair use.

To emphasize the importance of this case and the central issue that was discussed, even the US government intervened, recommending that the US Supreme Court rule in favour of the photographer’s right to pursue the issue under copyright, because the artwork served the exact same commercial purpose that the photo had (Brittain B. , 2022).

Before we analyse the impact that the ruling might have, we shall take a brief look at the facts of the case. Goldsmith took a photograph of Prince in 1981, a photograph for which she retained copyright and which was licensed by her to Vanity Fair in 1984, to be used by Andy Warhol as a reference for a silkscreen illustration which was published in Vanity Fair. The agreement stated that the image shall be used once and that Goldsmith shall be credited. Warhol made a collection based on said photo, the Prince series, which included 16 silkscreens and sketches, all of which Goldsmith’s stated she had no knowledge of. After Prince died in 2016, Condé Nast published one of the silkscreens (the Orange Prince) on its commemorative magazine and credited the Andy Warhol Foundation but not Lynn Goldsmith.

The Foundation filed for a preliminary ruling, which was given in 2019 and stated that Warhol’s work was fair use in this case. Goldsmith appealed, and the Second Circuit ruled in her favour, which leads us to the Foundation appealing to the Supreme Court and today’s ruling.

Before we dive into the ruling, we should also take a look at what was Andy Warhol’s style. The style employed by Warhol is known as appropriation art and is defined as “the practice of artists using pre-existing objects or images in their art with little transformation of the original” (Tate, n.d.) or “the intentional borrowing, copying, and alteration of existing images and objects” (MoMA, n.d.). By reading these definitions, one can see how such an artistic style might pose a problem in copyright.

Many feared that the Supreme Court’s ruling would dive into the issue of “transformativeness”, as this is one of the aspects looked at when applying the four-factor test in order to establish if the so-called infringement falls under fair use or not. The four factors upon which fair use is assessed are (Stanford Libraries, n.d.):

        ·         Purpose and character of the use;

        ·         The nature of the copyrighted work;

        ·         The amount and substantiality of the portion taken;

        ·         The effect of the use on the potential market;

The four factor test now also checks whether the use of the copyrighted work was transformative, namely if what was added altered the work by giving it a new expression, meaning or a new message (Ginsburg, 2022).

Before the ruling was given, many academics and professionals gave their opinion on the issue of fair use. Prof. Ginsburg believed that the issue in the Andy Warhol Foundation v Goldsmith case was one of balancing the right of licensing one’s work against that of the right of artistic freedom through the use of transformative work (Ginsburg, 2022). Ginsburg proposes 2 solutions to solve this issue, yet both come with certain problems. The first solution requires the judge to transpose themselves in the role of an expert (and in this particular case, an art expert) to assess the degrees of transformativeness – which equates to art criticism. This in turn could completely exclude the judicial construct of the “ordinary/common man/discerner”, as art in itself is subjective and conveys different meaning based on each individual’s perception. Whilst there might be a correct interpretation of an artwork (the meaning that the artist wished to convey), reception of art and its meaning is based on one’s own understanding of the artwork (the saying among legal professionals in Romania is that where there’s 2 jurists there are 3 opinions) (Ginsburg, 2022). The second solution, a generous assessment of ‘transformativeness’, calls upon a problem signalled before, that the first factor of the test from Campbell v Acuff-Rose sways the test. The solution proposed with the generous assessment is that the four factors should each be weighed equally, rather than the first dictating that the others 3 fall in line, which, as the author describes it, is a return to a ‘holistic’ assessment (Ginsburg, 2022).

Mr. Patry on the other hand, believed that the ruling would not have the impact that some believed. He stated, correctly, that the Supreme Court would not dwell on the issue of art, but on the legality of fair use (Patry, 2023). Mr. Patry gives several examples of important US cases of fair use and how their rulings did not have the effect that some believed it would have, that of stifling creativity and the incentive to create, such as Campbell v Acuff-Rose and Google LLC v Oracle America Inc (Patry, 2023). Mr. Patry was right in his assessment that the Court would rule that Warhol’s use of the work was fair use, yet that was only for the Prince series as a whole and not the licensing of the Orange Prince, which was found to not fall under the defence of fair use.

The Supreme Court avoided the issue that many were worried about, namely judging the transformative aspect of appropriation art, thus giving a ruling based on the merits of art. But the ruling did not do that, rather focusing on the commercial aspect of licensing, as such avoiding the issue of the transformative aspect of appropriation art. Yet, from the 7-2 majority ruling, we can see that the solution adopted was not one agreed upon by all judges. In the dissenting opinion, Justice Elena Kagan stated that “All of Warhol’s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum of the majority opinion” and “Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gone before; and later works build on that one; and so on through time. In declining to acknowledge the importance of transformative copying, the court today, and for the first time, turns its back on how creativity works”¹. As Justice Kagan stated, the Supreme Court ignored the issue of the art by focusing solely on the licensing of the silkscreen. This in turn can create problems for the commercialization of appropriation art, through the use of souvenirs with such artworks, but not for the art itself. This might not affect greater artists, that have the same fame and recognition as Andy Warhol did, but it can affect smaller artists who do not have such a reach or market, thus stifling the very creativity that copyright sets out to protect and incentivise.

Bibliography

Brittain, B. (2022, August 16). U.S. backs photographer at Supreme Court in Andy Warhol copyright battle. Retrieved from Reuters: https://www.reuters.com/legal/warhol-estate-loses-us-supreme-court-copyright-fight-over-prince-paintings-2023-05-18/)

Brittain, B. (2023, May 19). Warhol estate loses U.S. Supreme Court copyright battle over Prince artwork. Retrieved from Reuters: https://www.reuters.com/legal/warhol-estate-loses-us-supreme-court-copyright-fight-over-prince-paintings-2023-05-18/

Ginsburg, J. (2022). Does ‘transformative’ fair use eviscerate the author’s exclusive right to ‘transform’ her work? Journal of Intellectual Property Law & Pracvtice, 687-689.

MoMA. (n.d.). Appropriation. Retrieved from Museum of Modern Art: https://www.moma.org/learn/moma_learning/themes/pop-art/appropriation/

Patry, B. (2023). The US Supreme Court’s Warhol case: what is the fuss about? . Journal of Intellectual Property Law & Practice, 267-268.

Stanford Libraries. (n.d.). Measuring Fair Use: The Four Factors. Retrieved from Stanford Libraries: https://fairuse.stanford.edu/overview/fair-use/four-factors/

Tate. (n.d.). APPROPRIATION. Retrieved from Tate: https://www.tate.org.uk/art/art-terms/a/appropriation