Supreme Court copyright case: Did Warhol images of Prince cross the line?

The Supreme Court on Wednesday weighed a major copyright clash over Andy Warhol’s use of a photo of Prince, and appears divided on how far artists may go in freely using the work of others.

The case is being closely watched in the art and entertainment industries, which both rely on copyrights and also license copyrighted material for new works, such as films that are based on and adapted from novels.

During a lively back-and-forth argument, the justices sounded interested and engaged but divided on how to rule. At issue is whether and when an artist may use copyrighted material without paying a fee if his new work is “transformative” in its meaning and message.

Chief Justice John G. Roberts said Warhol’s work may qualify as new and transformative. His silkscreen portraits of Prince were new and quite different from the photos they were based on. His work was a “comment on modern society” and the impact of celebrity, he said.

Such a view, if adopted by the court, could decimate the photography industry, replied Washington attorney Lisa S. Blatt, who represents celebrity photographer Lynn Goldsmith. It could also damage the music, movie and publishing industries, she said.

It is too easy, she said, for artists, advertisers or others to rework a copyrighted work and claim they created something new. “Copyright will be be at the mercy of copycats” if that is the law, she said.

Justice Clarence Thomas appeared to agree with her. He also had a surprise for his colleagues. “Let’s say that I’m both a Prince fan, which I was in the 1980s,” to laughter in the courtroom. “And let’s say I’m also a Syracuse fan .. and make on one of those big blowup posters of Orange Prince and put ” ‘ Go Orange’ underneath.”

If he were to wave it in the stands and market it to Syracuse fans, “would you sue me” for infringing Warhol’s copyright?” Thomas asked Roman Martinez, the attorney for the Warhol Foundation for the Visual Arts. “I’ve changed the message,” he added.

“That may not be the kind of transformation that the copyright laws are intended to foster, which is encouraging follow-on artists to use creativity to introduce new ideas,” Martinez replied.

But that exchange only complicated the question of when a new and transformed message allows for freely using a copyrighted work.

Current copyright laws include a limited exemption for “fair use,” such as quoting a few lines from a book for a review or a news story. But the Warhol Foundation is asking the court to uphold a much broader exemption for new works that “transform” a copyrighted original.

In 1984, Vanity Fair hired Warhol to portray Prince, whose career had just taken off with the release of “Purple Rain,” in one of his iconic silkscreens. Warhol used a copyrighted photo taken in 1981 by Goldsmith to create the silkscreen. He credited her for the photo and paid a $400 licensing fee.

However, more than three decades later, when Prince died, the Warhol Foundation for the Visual Arts charged Vanity Fair $10,250 to publish a larger set of silkscreens that Warhol also made in 1984. This time, Goldsmith received no credit and no fee for the use of her photo.

When she raised the issue, the Warhol Foundation sued her, alleging its use of her work was fair and legal. However, the 2nd Circuit Court in New York disagreed, ruling there is no special fair use exception for celebrity artists.

The Supreme Court agreed to decide the case of Warhol Foundation vs. Goldsmith because judges were divided on whether a new work that “transforms” a copyrighted original is protected as fair use.

In their legal briefs, lawyers for the Warhol Foundation argued that “a creative work that conveys a new meaning or message is transformative for purposes of the Copyright Act’s fair use defense.” If so, they said, Warhol was free to use Goldsmith’s copyrighted photo for his silkscreen of Prince.

But Blatt, the attorney for Goldsmith, said this view, if upheld, would upset all of copyright law.

It “would transform copyright law into all copying, no right,” she argued. Songs could be altered, book endings changed or photographs airbrushed and thereby escape the reach of a copyright, she said. Then, “fair use becomes a license to steal,” she wrote in her brief to the court.