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Tuesday, December 5, 2023

Supreme Court’s Warhol decision for fair use could have huge copyright implications

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The Supreme Court ruled that Andy Warhol had infringed photographer Lynn Goldsmith’s copyright for taking photographs of musician Prince, which he used in his famous silkscreens. Goldsmith won the judges 7–2, with Warhol’s camp disagreeing that his work was transformative enough to fend off copyright claims. In the majority opinion prepared by Judge Sonia Sotomayor, she stated that “Goldsmith’s original work, like any other photographer’s work, is entitled to copyright protection, even for famous artists.”

Goldsmith’s story dates back to 1984, when Vanity Fair licensed a photo of her prince as an artist’s reference. The photographer was paid $400 for one use of his photograph, and Warhol used it as the basis for a silkscreen published by the magazine. Warhol then produced 15 additional works based on his photographs, one of which was sold to Condé Nast for another magazine article about Prince. The Andy Warhol Foundation (AWF) had received $10,000 since the artist had died by then, but Goldsmith had received nothing.

In general, “fair use” is the use of copyrighted material for limited, “transformative” purposes without the permission of the copyright owner. However, what qualifies for “transformative” use can be unclear, and that ambiguity has resulted in several lawsuits. In this particular case, the court determined that adding “any new expression, meaning or message” to a photograph does not constitute a “transformative use”. Sotomayor said that Goldsmith’s photographs and Warhol’s silkscreens serve “practically the same purpose”.

In fact, this decision may have far-reaching implications for proper use and may affect future cases of what constitutes a transformative act. Especially now that we live in an age of content creators who can draw inspiration from existing music and art. As CNN reported, Judge Elena Kagan strongly disagreed with her fellow judges, arguing that the decision would stifle creativity. She said that the judges focused mostly on the commercial purpose of the work and did not take into account that photography and silkscreen have different “aesthetic qualities” and “do not convey the same meaning”.

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