In a case with potential implications on a wide range of creative industries, the Supreme Court ruled on Thursday, May 18, that Andy Warhol infringed on a photographer’s copyrights for his portraits of Prince.
The court ruled 7-2 in favor of Lynn Goldsmith, whose photos of The Purple One were the original works, which Warhol then used for his own artwork. The court went against the Warhol Foundation’s argument that Warhol’s work was “transformative” enough that they were substantially different and constituted fair use.
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The case dates back to the 1980s, when Newsweek commissioned Goldsmith to photograph Prince in 1981. In 1984, Vanity Fair got a license to use Goldsmith’s photo for an illustration, for which they commissioned Warhol. The license included language specifying “one time only” for the use.
In 2016 after Prince died, Vanity Fair went to the Warhol Foundation and asked to use other, unlicensed Warhol illustrations for a special Prince tribute. While the Warhol Foundation gave its approval, Goldsmith was neither paid nor credited. The Warhol Foundation then sued Goldsmith, seeking a declaratory judgement that they didn’t infringe upon her copyrights, while Goldsmith countersued. The case went through federal court and eventually arrived at the Supreme Court.
Writing the court’s majority opinion, Justice Sonia Sotomayor contended that the intent in Warhol’s portrait wasn’t significantly different than Goldsmiths’s as they were both commercial art of Prince intended for a magazine. Such a distinction may not apply to other famous Warhol works like his Campbell’s Soup art, she wrote, given that the soup cans are commercial while Warhol’s work was artistic commentary.
“The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original,” Sotomayor wrote. “In this case, however, Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose.”
In the dissenting opinion, Justice Elena Kagan cast worry that the court’s opinion would “thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer,” she wrote.
Some in the music industry have been watching the case closely for months, stating that its implications could carry into the business and already convoluted world of music copyright. However, several music attorneys who spoke with Rolling Stone said the Court’s decision upheld the status quo around fair use and argued it wouldn’t embolden infringement.
Mitch Glazier, the CEO of the RIAA and David Israelite, presIdent of the NMPA, both lauded the court’s ruling. In a statement, Glazier said the ruling weakens faulty arguments around transformative use in fair use cases. He also said he believed the decision sets an important precedent in the ongoing conversation on how to handle the legality of artificial intelligence in music.
“We applaud the Supreme Court’s considered and thoughtful decision that claims of ‘transformative use’ cannot undermine the basic rights given to all creators under the Copyright Act,” Glazier said. “Lower courts have misconstrued fair use for too long and we are grateful the Supreme Court has reaffirmed the core purposes of copyright. We hope those who have relied on distorted – and now discredited – claims of ‘transformative use,’ such as those who use copyrighted works to train artificial intelligence systems without authorization, will revisit their practices in light of this important ruling.”
Israelite, cited similar issues as Glazier and called the SCOTUS ruling “a massive victory for songwriters and music publishers.”
“This is an important win that prevents an expansion of the fair use defense based on claims of transformative use,” Israelite said. “It allows songwriters and music publishers to better protect their works from unauthorized uses, something which will continue to be challenged in unprecedented ways in the AI era. This decision enhances our ability to protect songwriters from increasingly broad claims from would-be infringers of fair use, strengthening creators’ rights to determine how their art is exploited and valued.”
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