the law

Supreme Court Rules Warhol’s Prince Portrait Isn’t Diff-print Enough

Photo-Illustration: Vulture;Photos: Getty Images

The Supreme Court has decided that photographer Lynn Goldsmith’s prints are all over Andy Warhol’s art, ruling on May 18 that Warhol’s portrait of the Artist Formerly Known as Prince infringed on fair-use copyright laws. Warhol made his version in 1984, and it was based on a portrait of Prince done by Goldsmith. The case hinged on whether this re-creation violated fair use by using Goldsmith’s work for commercial purposes. Ultimately, the court decided in a 7-2 decision that fair use was, in fact, violated. In 2016, the Andy Warhol Foundation for the Visual Arts licensed the Warhol portrait to Condé Nast for the cover of a magazine commemorating Prince without Goldsmith’s permission — despite the fact that Goldsmith had initially granted Vanity Fair only a onetime license in 1984 to use her work as a “source photograph.”

“An overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works,” Justice Sonia Sotomayor wrote in the opinion of the court. “To preserve that right, the degree of transformation required to make ‘transformative’ use of an original must go beyond that required to qualify as a derivative.”

Justice Elena Kagan dissented, stating that fair use’s primary test factor “provides ‘breathing space’ for artists to use existing materials to make fundamentally new works, for the public’s enjoyment and benefit,” adding that “in now remaking that factor, and thus constricting fair use’s boundaries, the majority hampers creative progress and undermines creative freedom.”

Supreme Court Says Warhol Portrait Isn’t Diff-print Enough