Supreme Court Could End Fair Use as We Know It

Lynn Goldsmith's portrait of Prince next to Andy Warhol's silkscreen prints based on the photo.

Lynn Goldsmith’s photo of Prince (left) was used to create a series of 16 silkscreen prints by Andy Warhol.
Screenshot: Collection of the Supreme Court of the United States

In 1981 the photographer Lynn Goldsmith took a portrait of Prince. He sits alone on a white background, wearing a blank expression with a glint of light in his eyes. In 1984 Andy Warhol used that photo to create art. Warhol altered the image, adjusting the angle of Prince’s face, layering on swaths of color, darkening the edges, and adding hand-drawn outlines and other details in a series of 16 silkscreen prints.

40 years later, the artwork is at the center of a Supreme Court case that could change the course of American art, copyright law, and even the state of the internet. The question is whether Warhol’s work was fair use, or if he violated Goldsmith’s copyright. In oral arguments on Wednesday, the Court wrestled with the finer points of the issue, and to put it mildly, it’s pretty complicated.

Did Warhol create an entirely new work of art, or was it just a derivative reinterpretation of Goldsmith’s photo? If the art is found to be derivative, the Warhol Foundation will owe Goldsmith millions in fees, royalties, and perhaps additional damages. But the implications of the Supreme Court’s pending decision are a much bigger deal than a few million dollars.

Goldsmith argues that siding against her would pave the way for artists to have their work appropriated without compensation, which she says would decimate the field of photography. On the other side, a ruling in favor of Goldsmith, “would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works,” said Roman Martinez, a lawyer for the Warhol Foundation. “It would also chill the creation of new art by established and up-and-coming artists alike.”

The aftershocks could spread far beyond the art world, too. The question of fair use is a fundamental issue on the internet, social media platforms in particular. For example, YouTube has copyright algorithms that scan every video. If they detect footage or music that YouTube doesn’t have a license to use, the video gets flagged, suspended, or removed. This kind of algorithm is designed to err on the side of caution, and if the rules about fair use become stricter, platforms could get a lot more heavy-handed in their decisions about removing content. Imagine filters that bring down the banhammer on any video that has a visual similarity to copyrighted material. Sure, that would be an extreme outcome, but this is an extreme case. We’re talking about legally erasing the legacy of the most famous artist of the 20th century.

It’s an old cliche that there’s no such thing as completely original art. Every piece owes something to all the art that came before it. The more you’re borrowing from other artists though, the more original you have to be.

You don’t have to pay the original artist if it’s fair use, which is determined based on four factors: the purpose you’re using it for, the nature of the art, how substantially you used the original work, and how your new art affects the market for the original. The lawyers, in this case, focused on the first and fourth factors, purpose and the market.

If your purpose is to say something funny about an existing piece of art, you’re probably in the clear. The Court previously ruled that 2 Live Crew’s take on Roy Orbison’s 1964 classic Pretty Woman was fair use because it’s a parody that substantially “transforms” the original work.

The Warhol Foundation argues that its appropriating prints transform the photograph, too, because they have a different meaning and message. The original photo was just supposed to be a picture of Prince, but Warhol’s work was meant to be a statement about “the dehumanizing effects of celebrity culture in America,” Martinez said.

Chief Justice John Roberts seemed to agree that this kind of transformation was possible, but he voiced concerns. What if you just “put a little smile on his face and say, this is a new message,” Roberts asked. “The message is, ‘Prince can be happy. Prince should be happy.’ Is that enough of a transformation?”

Several Justices seemed uncomfortable with the responsibility of answering that kind of question. So too was a lower court. The Second Circuit Court decided in favor of Goldsmith and threw out the whole question of the meaning and message of a work of art, saying that judges “should not assume the role of art critic.” The Second Circuit said instead that the case should focus on the “character” of the art, which essentially means how aesthetically similar the two pieces are, ruling that Warhol and Goldsmith’s artworks were too much alike for this to be a case of fair use.

Neither side seemed entirely happy with that ruling. Even Goldsmith’s representatives agreed that the 2nd Circuit was wrong, conceding that meaning and message are issues that the legal system should address.

To be fair use, the new art doesn’t just have to be transformative, it has to be different enough that it doesn’t compete as a substitute for the original work in the art market. That could pose a problem for the Warhol Foundation. Goldsmith’s photo was taken for an article about Prince for Newsweek, and Warhol’s piece was used in an article about Prince for Vanity Fair.

“The difficulty of this case is that this particular image is being used, arguably, maybe for the same purpose, to identify an individual in a magazine in a commercial setting,” said Justice Neil Gorsuch.

Justine Sonia Sotomayor seemed to agree, but Justice Roberts challenged the idea. “It’s a different style. It’s a different purpose. One is a commentary on modern society. The other is to show what Prince looks like,” Justice Roberts said.

The arguments were unusually lighthearted for the Court, with both lawyers and Justices cracking jokes about the world of art and pop culture. A chuckling Justice Clarence Thomas made a point to mention he was a fan of Prince, at least in the 80s, while Justice Amy Coney Barrett’s comments suggested a fondness for the “Lord of The Rings.”

But the Court’s decision will have serious implications. A broad ruling in favor of the Warhol Foundation could theoretically make it easier to steal or make liberal use of artists’ work. During the trial, the question of movie adaptations of books got a lot of attention. Justice Sotomayor pointed out that filmmakers reinterpret plots, add characters and dialogue, and make other changes that could be considered transformative, but no one argues that you shouldn’t have to pay an author when you turn their book into a movie.

As Goldsmith’s attorney Lisa Blatt put it, the wrong ruling could mean “anyone could turn Darth Vader into a hero or spin-off ‘All In The Family’ into ‘The Jeffersons’ without paying the creators a dime.”

On the other hand, a narrow ruling in favor of Goldsmith could have huge repercussions for the art world. The estates of pop art icons Robert Rauschenberg oath Roy Lichtenstein joined the Brooklyn Museum in an amicus brief, telling the court upholding the 2nd Circuit’s decision, would “impose a deep chill on artistic progress, as creative appropriation of existing images has been a staple of artistic development for centuries.”

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