WASHINGTON, DC.- In a freewheeling and lighthearted Supreme Court argument that drew on pop culture and art criticism, the justices struggled Wednesday to decide whether Andy Warhol had violated the copyright law by drawing on a photograph for a series of images of musician Prince.
They considered countless analogies: Darth Vader, Steven Spielberg, Jimi Hendrix, “The Lord of the Rings,” “All in the Family.” And they discussed their own evolving tastes.
Justice Clarence Thomas asked a lawyer to assume he was a Prince fan — “which I was in the ’80s.”
This piqued Justice Elena Kagan’s interest. “No longer?” she asked.
As laughter filled the courtroom, Thomas considered the question and responded with a quip. “Only on Thursday night,” he said.
The case will test the scope of the fair-use defense to copyright infringement, which makes exceptions for copying that would otherwise be unlawful if it involves activities like criticism and new reporting.
The case concerns a portrait of Prince by Lynn Goldsmith, a successful rock photographer. A central question for the justices was how to assess whether a Warhol work based on her photograph had meaningfully transformed it. In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create an image to accompany an article titled “Purple Fame.” The magazine paid Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.
In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, masklike appearance.” Vanity Fair ran one of the images.
Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Goldsmith received no money or credit.
Litigation followed, much of it focused on whether Warhol had transformed Goldsmith’s photograph. The Supreme Court has said a work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”
Some justices suggested that Warhol’s work had cleared that bar.
“It’s not just that Warhol has a different style,” Chief Justice John Roberts said. “It’s that, unlike Goldsmith’s photograph, Warhol sends a message about the depersonalization of modern culture and celebrity status.”
He added: “One is the commentary on modern society. The other is to show what Prince looks like.”
Kagan said Warhol’s success was evidence that his work added to the meaning of his source materials.
“Why do museums show Andy Warhol?” she asked. “They show Andy Warhol because he was a transformative artist, because he took a bunch of photographs and he made them mean something completely different. And people look at Elvis and people look at Marilyn Monroe or Elizabeth Taylor and Prince, and they say this has an entirely different message from the thing that started it all off.”
But Justice Samuel Alito said judges might not make good art critics.
“How is a court to determine the purpose of meaning, the message or meaning of works of art like a photograph or a painting?” he asked Roman Martinez, a lawyer for the Warhol foundation, adding, “You make it sound simple, but maybe it’s not so simple.”
Other justices peppered Martinez with skeptical questions.
Justice Sonia Sotomayor said the photographer and the artist had competed in the same market.
“They both sell photographs to magazines,” she said, “and they both sell photographs to magazines to display Prince’s vision or Prince’s look.”
Justice Amy Coney Barrett questioned whether Warhol had to use Goldsmith’s image of Prince.
“Warhol didn’t need Goldsmith’s particular photo, right?” she asked. “I mean, it could have been a different photo of Prince.”
Martinez said the case did not turn on whether Warhol had alternatives, and he urged the justices to consider the consequences of their ruling.
“A ruling for Goldsmith,” he said, “would strip protection not just from the Prince series but from countless works of modern and contemporary art.”
Lisa S. Blatt, a lawyer for Goldsmith, said it was not enough to say that “Warhol is a creative genius who imbued other people’s art with his own distinctive style.”
“Spielberg did the same for films and Jimi Hendrix for music,” she said. “Those giants still needed licenses.”
She added that a ruling for Warhol would create mayhem in the marketplace.
“Copyrights will be at the mercy of copycats,” she said. “Anyone could turn Darth Vader into a hero or spin off ‘All in the Family’ into ‘The Jeffersons’ without paying the creators a dime.”
Last year, in a case about computer code, Justice Stephen Breyer’s majority opinion appeared to say that the fair-use defense to copyright claims might apply to Warhol’s images of Campbell’s Soup cans and similar works. “An ‘artistic painting’ might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted ‘advertising logo to make a comment about consumerism,’” Breyer wrote, quoting a treatise.
On Wednesday, Justice Neil Gorsuch said the question before the court was more difficult.
“Campbell’s Soup seems to me an easy case because the purpose of the use for Andy Warhol was not to sell tomato soup in the supermarket,” Gorsuch said. “It was to induce a reaction from a viewer in a museum or in other settings.”
The two works at issue in the new case, Andy Warhol Foundation for the Visual Arts v. Goldsmith, Gorsuch said, are “being used arguably maybe for the same purpose, to identify an individual in a magazine.”
This article originally appeared in
The New York Times.
