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Supreme Court Will Hear Case Over Warhol’s Prince Portraits

Did the artist make "fair use" of copyrighted photos when he created paintings of Prince? The Supreme Court is going to decide.

The U.S. Supreme Court said Monday it would hear a closely-watched copyright case over a series of images of Prince created by Andy Warhol.

The battle before the high court will center on whether the late Warhol made a legal “fair use” of a copyrighted photograph of Prince – snapped by Lynn Goldsmith – when he used it as the basis for the paintings.

As is typical, the justices did not offer any explanation for why they had agreed to tackle the case. They will hear arguments in the fall and likely rule on the case at some point during the first half of 2023.

Warhol created his Prince images in 1984 as artwork for a Vanity Fair article called “Purple Fame.” To do so, he used a portrait of the star taken in 1981 by Goldsmith, which Vanity Fair had licensed for use in the magazine.

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Goldsmith says she didn’t find out about Warhol’s use of her images until 2016, when Condé Nast magazine re-used them on the cover a tribute issue following Prince’s sudden death from a painkiller overdose. 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 argued the iconic artist had “transformed” the image from a basic photo into a new work of art, meaning Warhol was covered by copyright’s fair use doctrine, which allows for the limited re-use of copyrighted material in new forms and contexts.

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.

In December, Warhol’;s foundation asked the Supreme Court to tackle the case, arguing that the ruling had restricted the definition of fair use and posed serious risks for artists. The group said the decision “casts a cloud of legal uncertainty over an entire genre of visual art.”

In a statement to Billboard, attorneys for the Warhol Foundation cheered the court’s decision to take the case. “The ‘fair use’ doctrine has for centuries been a cornerstone of creativity in our culture,” said Andy Gass of the law firm Latham & Watkins. “Our goal in this case is to preserve the breadth of protection it affords for all — from the Andy Warhols of the world, to those just embarking on their own process of exploration and innovation.”

An attorney for Goldsmith did not immediately return a request for comment. The photos at issue in the case are owned solely by Goldsmith, and Prince’s estate is not involved in the case.