The Supreme Court Will Hear Lawsuit Over Whether Warhol Committed Copyright Infringement

The Supreme Court said on Monday that it would review a closely watched copyright infringement lawsuit that pits the Andy Warhol Foundation against the photographer Lynn Goldsmith. The Court’s decision could have major implications for “fair use” of copyrighted materials in art.

Few cases related to contemporary art have ever been heard by the Supreme Court.

In 1984, Warhol used a 1981 photograph that Goldsmith had taken of the pop star Prince as the basis for a series of paintings. Goldsmith’s picture of Prince was shot on assignment for Newsweek. On commission for Vanity Fair, Warhol used the photograph as a reference, allegedly without Goldsmith’s knowledge of the project. She claimed decades later that Warhol had committed copyright infringement by using it.

Related Articles The Andy Warhol Diaries. Cr. Andy Netflix's 'Andy Warhol Diaries' Series Offers Intimate View of an Artist Known for Obfuscation AI-Generated Andy Warhol to Narrate New Netflix Documentary Series The Warhol Foundation’s lawsuit has already been considered a major one. Whatever decision the Supreme Court makes on the suit is likely to prove decisive, as it will clarify what constitutes “fair use” for artists who rely on appropriated ready-made images in their practices, a notoriously sticky artistic strategy that has landed figures like Jeff Koons and Richard Prince in court previously.

“We welcome the Supreme Court’s decision to grant review in this case,” Roman Martinez, a lawyer for the firm Latham’s Supreme Court & Appellate Practice, which is representing the Warhol Foundation, said in a statement. “The ‘fair use’ doctrine plays an essential role in protecting free artistic expression and advancing core First Amendment values.”

The case was initiated in 2017 when the Warhol Foundation preemptively sued Goldsmith in New York with the aim of getting a ruling that the Pop artist had not committed copyright infringement with his “Prince Series.” The Southern District Court of New York ruled in the foundation’s favor in 2019.

But Goldsmith appealed the case and registered a legal win in 2021, when the 2nd Circuit Court of Appeals said that said that her photograph was the “recognizable foundation” for the “Prince Series” paintings. Basing his decision on the visual qualities of the Warhol paintings, Judge Gerald Lynch said that Warhol may have changed the look of some parts of Goldsmith’s portrait—the color tones, for example—but that he had not done so in a “transformative” way.

By the end of last year, the Warhol Foundation had begun to seek a Supreme Court review of the case.

The news comes amid a period of heightened interest in Warhol. Netflix recently released a documentary series about the artist, titled The Andy Warhol Diaries, and Christie’s revealed plans last week to auction a $200 million portrait of Marilyn Monroe by him that could become one of the most expensive artworks ever sold.

Andy Warhol was Catholic, gay, and attempted to be (with varying reports of his success) celibate. He was incredibly talented, able to free-hand draw a circle with unrivaled perfection. And he was hugely conservative. His obsession with Campbell’s soup was based on the fact that as a child, he was very sickly and his mom was a single, working mom; she could often feed him nothing but soup, but he thought that the fact that there were so many dozens of kinds of Campbell’s soup was a miracle of American industriousness. He tried to praise God in such ordinary miracles; turning common pop culture into religion-inspired icons.

The tension between his deep faith and his sexuality was an artistic focus of his; he struggled with why God had allowed him to be incapable of having a family or joining the priesthood (unlike so many corrupt bishops, he believed his homosexuality rendered him incapable of the priesthood), so he was in turns angry at God and deeply worshipful.

Whoa, that is way deep.

All I was conveying was that my mother grew up in the same neighborhood, as Andy Warhol(Warhola).

If Goldsmith took the picture while working on assignment for a Newsweek, then the rights to the picture would belong to Newsweek. If Warhol used the photo published by Newsweek, then Newsweek would be the copyright holder and the aggrieved party.
If it was never published then how did Warhol get the picture? Did he buy it? If so Warhol would own the rights.
I don’t see how Goldsmith has standing.

Additionally if he didn’t notice the infringement for 40 years, then there’s insufficient evidence of a copyright infringement. And if he did notice it 40 years ago, then he waived the copyright by waiting too long to complain.

The rights were likely retained by the artist unless specifically signed away to Newsweek. (State laws vary on artist’s rights; the state I live in is artist-friendly on copyright issues)

For Newsweek, they’d rather pay a one-time publish fee (say $5,000) than a buyout fee (say, $15,000) on the use of the image. Newsweek might have had a 3 month window of exclusivity, after which the artist could resell the photo.

Assuming that Prince claimed no ownership (unlikely that he would, unless he had commissioned and paid for the session), the artist would have had full ownership.

As for ‘derivative use’ by Warhol, it seems to me a slippery slope if the Justices can’t clearly define what constitutes a violation. And, as you say, the delay in claiming infringement is troubling for the photographer.

It may be that SCOTUS took the case with the intent of broadening the rights of derivative users (ie. meme creators). I guess we’ll find out.

/my 2c, ymmv

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