The Supreme Court today confirmed that The Warhol Foundation's licensing of a Lynn Goldsmith photo of Prince that had been manipulated by Andy Warhol does not qualify for a "fair use" exception from copyright, and that it was an infringement. Link to the Supreme Court opinion here.
Justice Sotomayor, in the majority opinion wrote, "'Lynn Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists."
Goldsmith took the photo of Prince in 1981, and Andy Warhol paid her to use the photo in an illustration for Vanity Fair, but then he also used it to make 13 silkscreen prints and two pencil drawings, manipulating the photo in various ways. Goldsmith was not aware of this Prince Series.
In 2016, after Prince's death, the Andy Warhol Foundation sold an image from this Prince Series, "Orange Prince," to Condé Nast, with no payment to Goldsmith, and the lawsuit resulted.
The Andy Warhol Foundation argued that a fair use exception should apply because the Prince Series works are "transformative," with a different meaning or message than the photograph.
The court ruled that the photograph and the Prince Series had essentially the same, commercial, purpose: both were used as celebrity images for sale to periodicals.
This is unlike, for example, Warhol's famous use of the images of a Campbell's soup cans in canvas paintings. Sotomayor wrote:
"The purpose of Campbell's logo is to advertise soup. Warhol's canvases do not share that purpose. Rather, the Soup Cans series uses Campbell's copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising
soup. The use therefore does not supersede the objects of the advertising logo."Moreover, a further justification for Warhol's use of Campbell's logo is apparent. His Soup Cans series targets the logo. That is, the original copyrighted work is, at least in part, the object of Warhol's commentary. It is the very nature of Campbell's copyrighted logo—well known to the public, designed to be reproduced, and a symbol of an everyday item for mass consumption—that enables the commentary. Hence, the use of the copyrighted work not only serves a completely different purpose, to comment on consumerism rather than to advertise soup, it also "conjures up" the original work to "she[d] light" on the work itself, not just the subject of the work."
So the Soup Can series qualified for the fair use exception partly because it was parodying the underlying material, which is not the case with the Prince Series.
