PICTURING IT DIFFERENTLY: SCOTUS RULES IN WARHOL COPYRIGHT CASE

The Supreme Court issued a 7-2 ruling on 5/18, siding with photographer Lynn Goldsmith against The Andy Warhol Foundation, in a copyright infringement case pitting an artist's freedom to riff on existing copyrighted artworks against the rights of the copyright holder.

We wanted to know what legal minds are making of the ruling, so we jumped on the phone with someone infinitely more qualified than us: Bart Lazar, a Chicago-based intellectual property lawyer and partner at Seyfarth Shaw, LLP. We said "uh huh" a lot to further the illusion that we understood what he was telling us.

First, some background. In 1984 Vanity Fair paid photographer Lynn Goldsmith a $400 licensing fee for a one-time use of a photo of Prince. The publication didn’t actually run Goldsmith’s shot, opting instead to commission artist Andy Warhol to create new artwork using Goldsmith’s photo as a reference. Warhol’s "adaptive" artwork Orange Prince was published in a feature on The Purple One, and Goldsmith was credited for the source photograph.

Where did it go pear-shaped? Warhol went on to create a series of lithographs based on Goldsmith’s photo. The works remained in his private collection—and apparently off Goldsmith’s radar—until Vanity Fair resurrected the Orange Prince image for the cover of a special issue commemorating Prince’s death. When Goldsmith made her displeasure known, the Warhol Foundation went on the offensive—seeking a court ruling to establish that Warhol’s works did not infringe on Goldsmith’s copyright.

The trial court ruled in favor of the AWF claim citing fair use. On appeal, the Second Circuit sided with Goldsmith based on the Warhol image’s lack of "transformativeness" (a godawful word, if it is a word), which is required for fair use. In legal round three, SCOTUS upheld the lower court’s ruling.

Simply put, a work is considered "transformative" if it adds new meaning or expression to the original creative. Consider iconic Warhol works like Campbell’s Soup Cans and Brillo Boxes. Both are precise reproductions of copyrighted commercial packaging. Why don’t they constitute copyright infringement? “Because they are very obviously not meant to be misconstrued as the products,” said Lazar. “They’re social commentary.”

Ultimately, SCOTUS determined that Orange Prince was not substantively transformative of Goldsmith’s photo because both works were commissioned for the same intended commercial end use—magazine artwork.

So what does this mean for creators and adaptive artists?

Lazar sees the narrow focus of the decision as an overall positive for creators, explaining, “Copyright law provides authors with the right to control the use of their creative works, while fair use permits the unlicensed use of copyright-protected works in certain circumstances of U.S. copyright law. This ruling is sufficiently narrow to balance benefits and harms to both creators and adaptive artists.”

We're not sure, but we think this is great news for our new Doritos mural.