The Supreme Court on Wednesday weighed a major copyright dispute over Andy Warhol’s use of a photograph of Prince and appears to be at odds over how far artists can go to freely use the work of others.
The case is closely watched in the arts and entertainment industries, which both rely on copyright and license copyrighted material for new works, such as: B. Films based on and adapted from novels.
During a lively back-and-forth, the judges sounded interested and engaged but divided on how to govern. What is at issue is whether and when an artist can use copyrighted material without paying a fee if their new work is “transformative” in meaning and message.
Chief Justice John G. Roberts said Warhol’s work could be classified as new and transformative. His screenprinted portraits of Prince were new and very different from the photographs on which they were based. His work is a “commentary on modern society” and the influence of celebrity, he said.
Such a view, if accepted by the court, could decimate the photography industry, responded Washington attorney Lisa S. Blatt, representing famed photographer Lynn Goldsmith. And it’s also a shame for the music, film and publishing industries, she said.
It’s too easy, she said, for an artist, advertiser or anyone else to revise a copyrighted work and claim to have created something new. “Copyright will be at the mercy of copycats” if the law is, she said.
Judge Clarence Thomas seemed to agree with her. He also had a surprise for his colleagues. “Let’s say I’m both a Prince fan, which is what I was in the 1980s,” to a courtroom laugh. “And let’s say I’m a Syracuse fan too… and make one of these big Orange Prince blowup posters and put ‘Go Orange’ under it.”
If he waved it in the stands and marketed it to Syracuse fans, “would you sue me” for infringement of Warhol’s copyright?” Thomas asked Roman Martinez, attorney for the Warhol Foundation for the Visual Arts. “I changed the message,” he added.
“This may not be the kind of transformation that copyright laws are intended to encourage, encouraging subsequent artists to use their creativity to bring new ideas,” Martinez replied.
But these exchanges only complicated the question of when a new and changed message allows free use of a copyrighted work.
Current copyright laws include a limited exception to “fair use” such as B. Quoting a few lines from a book for a review or news article. But the Warhol Foundation is asking the court to uphold a much broader exemption for new works that “transform” a copyrighted original.
In 1984, Vanity Fair commissioned Warhol to portray Prince, whose career had just taken off with the release of Purple Rain, in one of his iconic screenprints. Warhol used a copyrighted photograph taken by Goldsmith in 1981 to create the silkscreen. He credited her for the photo and paid a $400 royalty.
More than three decades later, when Prince died, the Warhol Foundation for the Visual Arts charged Vanity Fair $10,250 to publish a larger series of screenprints that Warhol also made in 1984. This time, Goldsmith received no credit and no fee for using her photo.
When she raised the issue, the Warhol Foundation sued her, claiming that use of her work was fair and legal. However, the 2nd Circuit Court in New York disagreed, ruling that there is no special fair use exception for celebrity artists.
The Supreme Court agreed to rule the Warhol Foundation vs. Goldsmith case because judges disagreed over whether a new work that “transforms” a copyrighted original is protected as fair use.
In their legal briefs, attorneys for the Warhol Foundation argued that “a creative work that conveys a new meaning or message is transformative for the purposes of the fair use defense of copyright law.” If so, they said, Warhol would be free to use Goldsmith’s copyrighted photograph for his screenprint of Prince.
But Blatt, Goldsmith’s attorney, said that if that view were upheld, it would mess up the entirety of copyright law.
It “would turn copyright into all copying, not a right,” she argued. Songs could be altered, book endings changed, or photos airbrushed, thereby escaping the reach of a copyright, she said. Then “fair use becomes a license to steal,” she wrote in her brief to the court.
https://www.latimes.com/politics/story/2022-10-12/supreme-court-copyright-andy-warhol-prince Supreme Court to decide if Warhol images of Prince crossed line