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Copyright or copycat?: Supreme Court hears Andy Warhol art case

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A picture of the late singer Prince is at the center of a copyright case before the US Supreme Court./AFP
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Oct 13, 2022 - 12:20 PM

WASHINGTON — The nine justices of the US Supreme Court took on the role of art critics on Wednesday as they grappled with whether a photographer should be compensated for a picture she took of Prince used in a work by Andy Warhol.

In a lighter vein than in most cases before the court, arguments were sprinkled with eclectic pop culture references ranging from hit TV show “Mork & Mindy” to hip hop group 2 Live Crew to Stanley Kubrick’s horror film “The Shining.”

Justice Clarence Thomas volunteered at one point that he was a fan of Prince in the 1980s while Chief Justice John Roberts displayed a familiarity with Dutch abstract artist Piet Mondrian.

The case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, could have far-reaching implications for US copyright law and the art world.

“The stakes for artistic expression in this case are high,” said Roman Martinez, a lawyer for the Foundation, which was set up after Warhol’s death in 1987.

“It would make it illegal for artists, museums, galleries and collectors to display, sell profit from, maybe even possess, a significant quantity of works,” Martinez said. “It would also chill the creation of new art.”

The case stems from a black-and-white picture taken of Prince in 1981 by celebrity photographer Lynn Goldsmith.

In 1984, as Prince’s “Purple Rain” album was taking off, Vanity Fair asked Warhol to create an image to accompany a story on the musician in the magazine.

Warhol used one of Goldsmith’s photographs to produce a silk screen print image of Prince with a purple face in the familiar brightly colored style the artist made famous with his portraits of Marilyn Monroe.

Goldsmith received credit and was paid $400 for the rights for one-time use.

After Prince died in 2016, the Foundation licensed another image of the musician made by Warhol from the Goldsmith photo to Vanity Fair publisher Conde Nast.

Conde Nast paid the Foundation a $10,250 licensing fee.

Goldsmith did not receive anything and is claiming her copyright on the original photo was infringed.

‘At the mercy of copycats’ 

The Foundation argued in court that Warhol’s work was “transformative” — an original piece infused with a new meaning or message — and was permitted under what is known as the “fair use” doctrine in copyright law.

Lisa Blatt, a lawyer for Goldsmith, disagreed.

“Warhol got the picture in 1984 because Miss Goldsmith was paid and credited,” Blatt said.

The Foundation, she said, is claiming that “Warhol is a creative genius who imbued other people’s art with his own distinctive style.

“But (Steven) Spielberg did the same for films and Jimi Hendrix for music,” Blatt said. “Those giants still needed licenses.”

The Foundation is arguing that “adding new meaning is a good enough reason to copy for free,” she said. “But that test would decimate the art of photography by destroying the incentive to create the art in the first place.

“Copyrights will be at the mercy of copycats.”

Several justices appeared bemused about being thrust into the role of art critics.

“How is a court to determine the purpose or meaning, the message or meaning of works of art like a photograph or a painting,” asked Justice Samuel Alito. “There can be a lot of dispute about what the meaning of the message is.

“Do you call art critics as experts?”

“I think you could just look at the two works and figure out what you think, as a judge,” Martinez replied.

The Foundation lawyer added that a ruling in favor of Goldsmith would have “dramatic spillover consequences, not just for the Prince Series, but for all sorts of works in modern art that incorporate preexisting images.”

The Supreme Court heard the case after two lower courts issued split decisions — one in favor of the Foundation, the other in favor of Goldsmith.

The justices will issue their ruling by June 30.

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