Supreme Court Rules Against Andy Warhol In Big Copyright Case Over Prince Images
Music companies feared that a decision for Warhol could have disrupted industry practices for sampling or emboldened AI companies to use copyrighted songs.
Ruling on a case that record labels and publishers called “critical to the American music industry,” the U.S. Supreme Court said Thursday that Andy Warhol violated a photographer’s copyrights when he used her images of Prince to create one of his distinctive screen prints.
By a seven to two vote, the high court ruled that Warhol did not make legal “fair use” of photos of Prince snapped by Lynn Goldsmith, a trailblazing rock-and-roll photographer who also captured images of Bob Dylan, Mick Jagger, Patti Smith and Bruce Springsteen.
Attorneys for the late artist had warned that creators must be able to re-use earlier works and that a loss would “chill” creativity. But Justice Sonia Sotomayor said that Warhol had used the photo for largely the same commercial purpose as Goldsmith – and had offered little compelling reason for doing so.
“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” the justice wrote.
The ruling is 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.”
Ahead of the decision, the Recording Industry Association of America and the National Music Publishers’ Association had urged the court to adopt Thursday’s more limited vision of fair use. They said the outcome of the case was “critical to the American music industry,” warning that sampling and interpolation might have been regarded as legal fair use under the “wide and manipulable” approach sought by Warhol’s estate.
Music companies also feared that such an expansive fair use ruling might provide legal cover for artificial intelligence companies to use copyrighted music to “train” their platforms – a major open question that is likely to be litigated in the years ahead.
In a statement to Billboard, NMPA President & CEO David Israelite called the 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 artificial intelligence era.”
RIAA chairman and CEO Mitch Glazier had similar praise: “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.”
Warhol created his images in 1984 as artwork for a Vanity Fair article called “Purple Fame,” a sarcastic ode to the then-rising star. To do so, he 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 her 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.
In 2019, a federal judge ruled that Warhol’s images had “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” Such “transformative use” is often the key question when courts decide if something counts as a legal fair use.
But in 2021, a federal appeals court overturned that decision, sending the case to the Supreme Court. The court said that merely adding Warhol’s “signature style” to Goldsmith’s image had not created something “fundamentally different and new.”
In Thursday’s decision, the Supreme Court affirmed that ruling. In a 38-page opinion, Justice Sotomayor repeatedly stressed that the two images had been used for largely the same purpose – to illustrate a magazine with an image of Prince.
“If an original work and secondary use share the same or highly similar purposes, and the secondary use is commercial, the first fair use factor is likely to weigh against fair use, absent some other justification for copying,” the justice wrote.
With such similar purposes, the justice said that simply wanting to offer a new “meaning or message” was not, on it’s own, enough to count as a fair use. Major changes could still result in a ruling of fair use, the court said, but “modest alterations” would not suffice.
“Copying might have been helpful to convey a new meaning or message. It often is,” the justice wrote. “But that does not suffice under [fair use]. Nor does it distinguish [Warhol] from a long list of would-be fair users: a musician who finds it helpful to sample another artist’s song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few.”
The ruling came with a stinging dissent written by Justice Elena Kagan, who said the decision would leave American case law on fair use “in shambles.” Joined by Chief Justice John Roberts, Kagan warned that future fair use cases will now turn “a marketing decision” like how a work was licensed, rather than the actual artistic differences of the newer work, and that such an approach would risk stifling the next generation of artists.
“Let’s be honest, artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others,” the justice wrote. “That is the way artistry of all kinds—visual, musical, literary—happens (as it is the way knowledge and invention generally develop).”
Because of that, Kagan said, fair use was designed to provide “breathing space” for artists to build on what came before them. By “constricting fair use’s boundaries,” she lamented that the majority ruling “hampers creative progress and undermines creative freedom.”
But in her majority opinion, Justice Sotomayor was clearly unswayed. She said Kagan’s dissent “misses the forest for a tree,” and at one point mockingly noted that Thursday’s decision would not “snuff out the light of Western civilization” or bring back “the Dark Ages.”
“If the last century of American art, literature, music, and film is any indication, the existing copyright law, of which today’s opinion is a continuation, is a powerful engine of creativity,” Sotomayor wrote.
Following the ruling, Warhol Foundation president Joel Wachs said he and his organization “respectfully disagree” with the court’s decision, but praised the justices for avoiding a more sweeping ruling on Warhol’s artistic works: “Going forward, we will continue standing up for the rights of artists to create transformative works under the Copyright Act and the First Amendment.”
In her own statement, Goldsmith called Thursday “a great day for photographers and other artists who make a living by licensing their art.”
“I am thrilled by today’s decision and thankful to the Supreme Court for hearing our side of the story,” Goldsmith said.