Are Andy Warhol’s Silkscreens of Prince a Copyright Violation?

In 1981, Newsweek commissioned photographer Lynn Goldsmith to photograph Prince, who was just beginning to break into the mainstream with his provocative music and performances. The magazine used an image she snapped at one of his concerts, and Goldsmith shelved the rest, including a series of images taken in her studio, per NPR’s Nina Totenberg.

Three years later, Prince was everywhere, including in Vanity Fair, which commissioned Andy Warhol to create an illustration of Prince. The magazine paid Goldsmith $400 for rights to a black and white photograph of Prince from the 1981 shoot, and gave it to Warhol as a reference point. The pop artist created 16 silkscreen illustrations of Prince, called the Prince series. One of them ran in Vanity Fair, along with Warhol’s name and a small credit to Goldsmith.

When an accidental fentanyl overdose took Prince’s life in 2016, Condé Nast—the magazine conglomerate that oversees Vanity Fair—published a series of images to commemorate the late artist’s life. The company included another image from Warhol’s Prince series, Orange Prince, and paid the Andy Warhol Foundation $10,250 to do so. Goldsmith was not credited or paid.

This series of events, which involves two of the most iconic American artists of the last century, took center stage at the Supreme Court earlier this week. On Wednesday, lawyers argued Andy Warhol Foundation for the Visual Arts v. Goldsmith, a case that could transform how courts view copyright and creative expression. At the heart of the case is the scope of fair use, which allows copyrighted work to be used for certain artistic and educational purposes.

The lively debate was filled with pop culture references and marked by unusual laughter, as justices invoked the Lord of the Rings books and movies, the Syracuse University basketball team and Cheerios cereal to illustrate their points. When Justice Clarence Thomas mentioned in passing that he had been a fan of Prince in the 1980s, Justice Elena Kagan quipped: “No longer?” “Only on Thursday nights,” Thomas responded.

In 2019, a federal district court ruled that Warhol’s Prince series qualifies as fair use because of its “transformative” nature. But last year, the Second Circuit Court of Appeals sided with Goldsmith, stating that a judge “should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” 

Representing the Warhol Foundation is lawyer Roman Martinez, who argues that the case “isn’t just about Warhol. It’s about the young and up-and-coming artists who want to be Warhol’s successors.” If the court sides with Goldsmith, it would dissuade such artists from creating, he says, leading to “dramatic spillover consequences not just for the Prince series, but for all sorts of works of modern art that incorporate pre-existing images and use pre-existing images as raw material in generating completely new creative expression.”

On the other side is Lisa Schiavo Blatt, a lawyer for Goldsmith who argues that a liberal application of fair use “would decimate the art of photography by destroying the incentive to create the art in the first place, and it’s obvious why the multi-billion dollar industries of movies, music and publishing are horrified.”

Indeed, organizations representing those industries have weighed in: The Association of American Publishers, the National Music Publishers’ Association, the Screen Actors Guild-American Federation of Television and Radio Artists and the Recording Industry Association of America have all filed amicus briefs in support of Goldsmith. The Biden administration is also backing Goldsmith.

The Motion Picture Association filed a brief that said the court siding with Warhol would “threaten the protection afforded all manner of copyrighted works,” but did not explicitly take either side.

Supporting the Warhol Foundation are the Robert Rauschenberg Foundation, the Roy Lichtenstein Foundation and the Brooklyn Museum, which filed a joint brief.

The court is expected to make a decision by the end of June 2023, ahead of its summer recess.

Ella Feldman | READ MORE

Ella Malena Feldman is a writer and editor based in Washington, D.C. She examines art, culture and gender in her work, which has appeared in Washington City Paper, DCist and the Austin American-Statesman.