The US Supreme Court has announced that it will rule as to whether Andy Warhol’s use of a photograph taken by Lynn Goldsmith constitutes fair use. The case centers around a full-length black-and-white portrait of Prince that Goldsmith shot in 1981, working on commission for Newsweek. Three years later, Warhol appropriated the image for a silk-screen illustration accompanying a Vanity Fair article titled “Purple Fame,” boosting the portrait’s contrast, altering the palette to include deep orange and purple, and focusing only on the singer’s face. The Pittsburgh-born artist went on to make fifteen more related works, all under the title “Prince Series.”
Goldsmith, who received a onetime licensing fee of $400 for Warhol’s appropriation of the image for the Vanity Fair work, says she was unaware of the other works’ existence until 2016, when the magazine published another of the Warhol series on the occasion of Prince’s untimely death from a fentanyl overdose. Goldsmith complained, and the Warhol Foundation the following year filed a preemptive suit in the state of New York, with the intent of receiving a ruling acknowledging that Warhol was not guilty of copyright infringement in relation to the works. They achieved their goal in 2019, when Judge John G. Koeltl of Manhattan’s Federal District Court ruled in the foundation’s favor, asserting that Warhol had sufficiently altered the image enough to avoid infringement charges, and additionally noting that the resulting works were “immediately recognizable” as Warhols.
Goldsmith appealed the decision, and in 2021, a panel of three judges for the U.S. Court of Appeals for the Second Circuit, also in New York, overturned the ruling, with Judge Gerard E. Lynch writing that the Warhol works retained the “essential elements” of Goldsmith’s portrait, which the panel determined the artist had not altered enough to escape a copyright infringement charge. As to the works’ recognizability as Warhols, Lynch contended, “Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others.”
The case is being closely watched, as it could have far-reaching repercussions for artists, such as Jeff Koons and Richard Prince, whose oeuvre centers around reappropriation. The New York Times reports that Warhol Foundation attorneys have argued to the Supreme Court that a ruling against the foundation will “chill artistic expression and undermine First Amendment values,” while lawyers for Goldsmith dismissed the Warhol attorneys’ concerns as in line with those of Chicken Little, averring that “the sky is not remotely close to falling.”