In a case that could either confirm or restrict the rights of artists to create transformative works of art based on other copyrighted works, the Supreme Court will decide if a photographer is due royalties and damages from the Andy Warhol foundation for selling Warhol silkscreens of Prince that were based on her photo of the late musician.
The case, Warhol Foundation for the Visual Arts v. Goldsmith, is based on Lynn Goldsmith's portrait of Prince taken in a 1981 photo session for Newsweek. The magazine opted not to use the cover, but Goldsmith kept the photo for licensing.
In 1984, Vanity Fair asked Warhol to create one of his iconic silkscreen prints of Prince. The magazine asked him to use Goldsmith's photos as a reference. According to NPR, "The magazine paid Goldsmith $400 in licensing fees and promised in writing to use the image only in this one Vanity Fair issue. There is no evidence in the record that Warhol knew about the licensing agreement."
Warhol went on to create 16 silkscreen prints, which have generated hundreds of millions of dollars in revenue for the Warhol Foundation. Goldsmith sued the foundation, demanding million in royalties.
Copyright law has long included a "transformative use" exception, which allows artists to create new works based on copyrighted works, as long as the new work is sufficiently different from the original.
Goldsmith's lawyers argue that Warhol's work was not sufficiently transformative, while the Warhol Foundation's lawyers argue that it was.
Lower courts have been unable to agree on whether or not Warhol's print is sufficiently transformative, and the case has moved to the Supreme Court. The Supreme Court will likely need to decide whether or not Warhol's work was sufficiently transformative and, if so, how much leeway artists have to use copyrighted works as a reference.
However the Supreme Court rules, its decision will have rippling practical consequences. So it is no surprise that some three dozen friend of the court briefs have been filed arguing on one side or the other, and representing everyone from the American Association of publishers and the Motion Picture Association of America to the Library Futures Institute, the Digital Media Licensing Association, Dr. Seuss Enterprises, the Recording Industry Association of America and even the union that represents NPR's reporters, editors and producers, the Screen Actors Guild-American Federation of Television and Radio Artists.
The outcome could shift the law to favor more control by the original artist, but doing that could also inhibit artists and other content creators who build on existing work in everything from music and posters to AI creations and documentaries.