Supreme Court Takes Case of Warhol Portrait to Determine Copyright Infringement

WASHINGTON — The U.S. Supreme Court agreed Monday to review a case to determine whether artist Andy Warhol violated a photographer’s copyright by basing one of his artworks on a photograph of the musician Prince.

Both Warhol and Prince are deceased but photographer Lynn Goldsmith says the copyright on her photograph should allow her to share the financial benefits of Warhol’s artwork.

The silkscreen portrait depicts a somber image of Prince’s face that The Andy Warhol Foundation describes as “transformative” compared with Goldsmith’s photograph.

Under U.S. copyright law, transformative use or transformation of copyrighted material refers to a fair use that builds on the copyrighted work in a different manner or for a different purpose than the original. It is not considered a copyright infringement.

Goldsmith argues the Prince image is too close to her original photograph to be anything other than a copyright violation. Warhol called the 1984 portrait “Orange Prince.”

Implications of the Supreme Court ruling are likely to reach deep into the art world, where artists commonly try to build on popular images.

The case is reaching the Supreme Court now because Goldsmith found out about the Warhol artwork and sued after Prince died in 2016.

Warhol died in 1987. Although he is gone, his estate and The Andy Warhol Foundation continue to get payments from royalties on his artworks.

The trial court ruled in favor of The Andy Warhol Foundation. The judge agreed Warhol’s silkscreen was derived from the Goldsmith photograph but said Warhol transformed it from a photo showing a “vulnerable, uncomfortable person” into a portrait of “an iconic, larger-than-life figure.”

The 2nd Circuit Court of Appeals in New York disagreed.

Its ruling, written by Judge Gerard Lynch, said the lower court judge emphasized the subjective meaning of the portrait rather than using an objective standard to determine copyright infringement.

“The secondary work’s transformative purpose and character must, at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work,” the appeals court decision said.

It added, “There can be no reasonable debate that the works are substantially similar. Any reasonable viewer with access to a range of such photographs including the Goldsmith photograph would have no difficulty identifying the latter as the source material for Warhol’s Prince Series.”

The Supreme Court is taking on the case to clear up confusion between the different opinions from the trial and appellate courts.

Case precedent from earlier Supreme Court decisions, including the 2021 case of Google v. Oracle, appears to conflict with the 2nd Circuit appellate ruling. The Supreme Court said artwork is transformative if it conveys a different meaning or message from the source material.

“Orange Prince” was one of several silkscreens in which Warhol used bright orange to draw renewed attention to his subjects. Others include “Orange Marilyn” of actress Marilyn Monroe, “Orange Car Crash” and “Orange Little Electric Chair.”

Goldsmith said in a statement last year after the 2nd Circuit ruling, “I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work — and also to decide when, how, and even whether to exploit their creative works or license others to do so.”

The case is The Andy Warhol Foundation v. Goldsmith, case number 21-869, in the Supreme Court of the United States.

Tom can be reached at [email protected]