For any business owners making a living off of their art and creations, the latest Supreme Court ruling on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is worth reading about. Last week, on May 18, 2023, the Court published its decision as to whether a silkscreen painting done by renowned 1960’s pop-artist, Andy Warhol, infringed upon celebrity photographer, Lynn Goldsmith’s copyright.

The story begins in the 1980’s when one of Goldsmith’s portraits of Prince was licensed to Warhol to create a painting for a magazine, the licensing of which allowed for only one use of the photo. Warhol then went on to make his “Prince Series,” which was a total of 16 various images of Prince based off the initial Goldsmith photo but varying in color. After Warhol’s death, the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. In 2016, following Prince’s death, Vanity Fair published an issue celebrating his life and paid the Andy Warhol Foundation to use an image from the series for the cover (see above image). Ms. Goldsmith received no money or credit for the image and sued the Foundation for copyright infringement.

The Court’s primary focus was on the first fair use factor in determining whether Warhol had transformed the image enough to claim it as his own. The fair use defense to copyright infringement protects the creativity of artists by allowing some secondary works to make unauthorized use of original works if they serve a different purpose, add new expression, or convey new ideas. In a 7-2 majority, the Court found that the Andy Warhol Foundation’s use of the image served basically the same commercial purpose as Goldsmith’s original work. Therefore, the “purpose and character” of the Andy Warhol Foundation’s commercial use of Goldsmith’s photograph does not favor a fair use defense to copyright infringement.

In the dissenting opinion, Justice Elena Kagan and Chief Justice John Roberts criticized the majority of misinterpreting copyright law and disregarding the reality that art typically relies on the borrowing of previous works. They argued that this decision will stifle the creativity of artists going forward.

Full court opinion: https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf

For help with your small business’s intellectual property needs, contact the Small Business Clinic at businessclinic@elon.edu.

 

 

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