The United States government filed an amicus brief on Monday, August 15, 2022, supporting photographer Lynn Goldsmith in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, a United States Supreme Court case concerning the fair use defense in copyright cases.
The lawsuit concerns Andy Warhol’s series of portraits known as the Prince Series. Goldsmith photographed the musician Prince in her studio in 1981 for use in Newsweek magazine. The studio portraits were not used in Newsweek. A few years later, Vanity Fair magazine sought a license to use one of Goldsmith’s photos of Prince. A license was granted under specific terms. Andy Warhol was then commissioned by Vanity Fair magazine to create artwork using Goldsmith’s photo. Warhol, using Goldsmith’s photo, created sixteen works. Vanity Fair’s license from Goldsmith only authorized a single illustration for publication in Vanity Fair’s November 1984 issue. The Prince Series remained unused during Warhol’s lifetime. However, upon Prince’s death, Condé Nast licensed “Orange Prince” from The Andy Warhol Foundation, a work separate from the illustration used in the 1984 issue, for use in a tribute edition of Vanity Fair commemorating Prince. Goldsmith did not receive a fee or credit for this use.
In March 2021, the United States Court of Appeals for the Second Circuit ruled in favor of Goldsmith, finding The Andy Warhol Foundation liable for infringing Goldsmith’s copyright in her photo of Prince. The United States Supreme Court will decide “[w]hether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material, or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material.” The case seeks to clarify a split between the United States Court of Appeals for the Ninth Circuit and the United States Court of Appeals for the Second Circuit concerning the fair use defense.
The United States government’s amicus brief argues that “[t]he fair-use inquiry is necessarily use-specific” and that other uses of the Prince Series should be subject to separate fair-use analyses than the analysis at issue of the use of “Orange Prince.” The brief also encourages the Supreme Court to consider all four statutory fair use factors together, rather than focusing on the first factor, “the purpose and character of the use,” as suggested by The Andy Warhol Foundation. Relying on the first factor alone suggests that fair use applies since “the Orange Prince image conveys a meaning or message different from that of the Goldsmith Photograph.” However, “the fourth factor strongly supports the court of appeals’ conclusion that petitioner’s use was not fair” since the licensing of the image in question “undermines Goldsmith’s ability to license her photograph, either for inclusion in magazines or as an artist reference to facilitate creation of derivative works.” The brief considers the widespread ramifications of accepting The Andy Warhol Foundation’s argument in light of tools like Adobe Photoshop or Instagram filters. “If the alterations that Warhol made sufficed to allow secondary artists to use original photographs without authorization, the photography licensing market would suffer” since the aforementioned tools “readily allow a secondary user to replicate and then alter an image to communicate a new message.”
U.S. backs photographer at Supreme Court in Andy Warhol copyright battle, Reuters (August 16, 2022)
U.S. Supreme Court to Settle Copyright Dispute Over Andy Warhol’s Prince Series Prints, Justia Legal News (March 30, 2022)
Second Circuit Court of Appeals Rules That Andy Warhol’s Prince Series Prints Are Not Transformative Fair Use, Justia Legal News (March 31, 2021)
The Andy Warhol Foundation v. Goldsmith (U.S. Court of Appeals, Second Circuit, Case No. 19-2420)
Photo Credit: theincomparable_rj / Shutterstock.com