More than three decades after Andy Warhol‘s death and six years after Prince‘s sudden passing, the two pop culture icons took center stage Wednesday at the U.S. Supreme Court, as the justices weighed a closely-watched copyright case that could have a “far-reaching impact on many creative industries.”
During a two-hour hearing, the high court heard heated arguments over whether the late Warhol made a legal “fair use” of a photograph of Prince when he used it as the basis for a set of his distinctive screen prints – or merely infringed the copyrights of Lynn Goldsmith, the photographer who snapped it.
Both sides claimed the stakes were high. An attorney for Warhol’s foundation warned that a loss would “chill” creativity and make “countless” works illegal, a result he called “repugnant to copyright and to the First Amendment.” An attorney for Goldsmith countered that a ruling for Warhol would effectively render copyright protection meaningless.
“Copyrights will be at the mercy of copycats,” said Lisa Blatt, a veteran Supreme Court litigator at the law firm Williams & Connolly LLP. “Anyone could turn Darth Vader into a hero, or spin off ‘All In The Family’ into ‘The Jeffersons,’ without paying the creators a dime.”
In a lighter moment, Justice Clarence Thomas at one point began one of his questions by invoking the rock legend whose image is at the center of the case.
“Let’s say that I’m a Prince fan, which I was in the 80s,” Thomas began, before Justice Elena Kagan cut in: “No longer?” Thomas and the normally-staid Supreme Court gallery erupted in laughter, before the justice replied enigmatically: “Only on Thursday night.”
When the Supreme Court releases its decision on the Warhol case early next year, it will be the first time in more than three decades the justices have ruled on how creative works are covered by fair use. The last time the court did so was a landmark 1991 decision upholding 2 Live Crew‘s bawdy parody of Roy Orbison’s “Oh, Pretty Woman.”
Fair use is a crucial aspect of American copyright law, allowing for the re-use of protected works in certain circumstances; it’s sometimes referred to as a First Amendment “safety valve” for copyright’s strict limits on speech. How exactly to balance those two directly competing ideas – the question before the court on Wednesday – is both infamously difficult and extremely important.
“The Supreme Court’s decision could have a far-reaching impact on many creative industries,” said Stephanie Bunting Glaser, an attorney at the law firm Patterson Belknap. “Creators, including writers, filmmakers, musicians, visual artists and software developers, both depend on the enforcement of their copyright rights … and sometimes invoke the fair use doctrine as a defense.”
Ahead of Wednesday’s arguments, the Recording Industry Association of America and the National Music Publishers’ Association filed a brief in the case, urging the Supreme Court to reject the arguments from Warhol’s foundation and endorse a more limited version of fair use. They said the outcome of the case was “critical to the American music industry,” since sampling and interpolation might be regarded as fair use under Warhol’s “wide and manipulable” approach.
Warhol created his images in 1984 as artwork for a Vanity Fair article called “Purple Fame,” a sarcastic ode to the then-rising star and his place in American pop culture, which at one point opined that “escape from Prince is no longer possible.”
To create his images, Warhol used a portrait of the star taken in 1981 by Goldsmith. Vanity Fair licensed her image for use in the magazine, but Warhol also created more than a dozen other versions, which were later sold to collectors, displayed in museums and licensed for use without the photographer’s consent.
When Prince died suddenly from a drug overdose in 2016, Condé Nast magazine re-used Warhol’s image on the cover of a tribute issue – a prominent display that caught Goldsmith’s attention. After she threatened to sue the Andy Warhol Foundation for copyright infringement, the group filed a preemptive lawsuit to prove that the works were legal.
The foundation has argued the iconic artist’s changes transformed the Goldsmith’s original image, shifting it from a basic photo portrait into a new work of art. Such “transformative use” is often the key question when courts decide if something counts as a legal fair use.
In 2019, a federal judge agreed with that argument, ruling that Warhol’s images had “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But last year, a federal appeals court overturned that decision – ruling that Warhol’s work still had the “essential elements of its source material.” Merely adding his “signature style” to Goldsmith’s image had not created something “fundamentally different and new,” the court wrote at the time.
With that ruling on appeal to the Supreme Court on Wednesday, the justice repeatedly grappled with what exactly was necessary to “transform” a copyrighted work into a fair use.
Does an artist like Warhol also need to show, as Goldsmith’s lawyers argued, that it was “necessary” for them to use the particular work to accomplish their goal? Or is it enough, like the Warhol foundation argued, for a new work to impart an important new “message or meaning” distinct from the original?
“How is a court to determine the message or meaning of works of art, like a photograph or a painting?” asked Justice Samuel Alito, pushing back on the lawyer for the Warhol foundation. “You make it sound simple, but maybe it’s not so simple … there can be a lot of dispute.”
At one point, Justice Sonia Sotomayor pointed out that a key use of Warhol’s image – licensed to a magazine in 2016 as imagery for a story about Prince – had the exact same purpose as Goldsmith’s original. But Warhol attorney Roman Martinez, of the law firm Latham & Watkins, said that analysis was too narrow – and would have rendered 2 Live Crew’s famous parody illegal.
“You have a Roy Orbison song, that’s a work of popular music, that’s commenting on sexual attraction,” Martinez said. “And you have the 2 Live Crew Song, that’s also a work of popular music, also commenting on sexual attraction. They would have the same purpose. But you didn’t do that.”
Martinez generally faced tougher questions than Blatt, including about whether Warhol’s approach to fair use would threaten industry practices, which require licenses in many contexts where a new version has a new message or meaning, like a film adaptation of a book or a sample used in a new song. He fired back that those practices would not be upended, since fair use might be rejected for other reasons in those contexts.
But Blatt repeatedly hammered the same point when it was her time to argue.
“The copier has to explain why it needed, and not just wanted, to use someone else’s expression,” she said. “Petitioner responds that Warhol was a creative genius, who imbued other people’s art with his own distinctive style. But Spielberg did the same for films, Jimi Hendrix did the same for music. Those giants still needed licenses.”
That argument was backed up by the U.S. Department of Justice, which has joined the case to throw the weight of the federal government behind Goldsmith’s narrower view of fair use. At Wednesday’s argument, the government argued that Warhol’s approach would “destabilize longstanding industry licensing practices” that incentivize artists and entertainment companies: “Sequels, spinoffs, adaptations all become fair game if conveying a different meaning confers license to copy.”
The high court is expected to issue a ruling early next year.