Mikele Bicolli
Oct 17, 2022

The U.S. Supreme Court hears Andy Warhol’s Paintings of Prince Case | Is Creativity and Freedom of Expression Going to be Reshaped?

Are you familiar with Andy Warhol’s artwork? Fondly referred to as the “Pope of pop art,” Andy Warhol became famous with his silkscreen prints of distinctly American objects, celebrities, or advertisements repainted with different colors. In May 2022, his painting Shot Sage Blue Marilyn (1964) sold for $195 million, making it the most expensive piece of 20th-century art ever sold. The most famous of the silkscreen paintings, the one portraying Prince Rogers Nelson, is now at the center of a case that the Supreme Court began hearing last week.

The copyright of the photo, which is used to paint Prince’s portrait, actually belongs to Lynn Goldsmith, a famous photographer who has photographed almost every major artist and musician, starting from Nirvana to Bob Marley, and also the author of over 100 album covers. In 1981, Goldsmith, commissioned by Newsweek, took a series of photos of Prince, who was a rising star at that moment. She took photos of him at a concert as well as invited him to her studio where the famous photograph was taken. There, Goldsmith gave him purple eyeshadow and lip gloss and used umbrellas for the light effect in his eyes. Newsweek went for the concert photos, and the studio photos were kept by Goldsmith for future publications or licensing.

In 1984, Prince had already become a superstar, and Vanity Fair hired Andy Warhol to create an illustration of Prince for one of the upcoming articles. They asked Warhol to use one of Goldsmith's photos, who was paid $400 for the photo license. Meanwhile, using that image, Warhol created 16 silkscreens using that picture which he also copyrighted, with one used by Vanity Fair. These images are believed to have been sold, bringing hundreds of millions of dollars in revenue. On one particular occasion, Vanity Fair paid the Warhol foundation $10,250 to include one of these photographs in a single article. Goldsmith, on the other hand, didn't receive any payment, so she was considering suing the foundation for potentially millions of dollars in unpaid royalties uncredited for her work. The Warhol foundation, confident that the use of the photograph was fair use, sued Goldsmith, requesting a declaratory judgment that the silk prints were not infringing the copyright. They argued that Warhol copyrighted the Prince paintings as this work was transformative since he cropped the photo, taking only the Prince’s face, changed the angle and lighting, and drew some shades and lines. Ultimately, changing photography in its essence. Both sides have experts that have different opinions, and several courts have disagreed on this matter. The district court judge decided that the work was transformative, and as a result, the use of the photograph fell under fair use. When this case was appealed, the three-judge panel of the Court of Appeals disagreed, declaring that the judge assumed the role of an art critic. They also concluded that Warhol’s use of photographs was not transformative since the essential elements of the original work were present in the paintings. This decision is now brought to the Supreme Court, which can potentially change how lower courts will view copyright, creativity, and freedom of expression. Roman Martinez representing the Warhol foundation, argues that this case is impactful to the upcoming artists that take inspiration from Warhol’s work. On the other hand, Lisa Schiavo Blatt represents Goldsmith and argues that such considerations of fair use threaten the art of photography itself and destroy the incentive to create this art in the first place. Due to its importance, this case has generated heated arguments and opinions from artists to legal communities.

What are your thoughts on this matter, and how do you think the Supreme Court will decide this case? Is the fair use doctrine about to change?