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BREAKING: Supreme Court Decides on Andy Warhol Case

[Editor’s Note]: This letter was sent from Nina Ozlu Tunceli, Executive Director of Americans for the Arts Action Fund about today’s Supreme Court ruling on the long-awaited Andy Warhol case regarding copyright infringement.  Stay tuned for more reporting on this subject, and its implications for artists and digital creators, from ArtsNews in the days to come.

The United States Supreme Court issued a much anticipated decision today on the copyright infringement and licensing case of The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al. In a 7-2 opinion in favor of photojournalist Lynn Goldsmith, the nation’s highest court determined that Goldsmith’s original photograph of musician Prince, which was licensed for publication in a magazine, then later used by artist Andy Warhol to create new artwork that was also licensed for one-time use in a different publication, was an infringement of the photographer’s copyrights.

Legal analysts are interpreting this decision as a narrowing of the “fair use” rights of artists to be able to use existing work to create new works of art as a result of the justices focusing so intently on the similar commercial use of the two creative images in these specific licensing agreements. Justice Sonia Sotomayor wrote in her majority opinion that Goldsmith’s original works, “like those of other photographers, are entitled to copyright protection, even against famous artists.”

Sotomayor goes on to state, “The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith’s photograph of Prince, and AWF’s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose.” In a blistering dissenting opinion written by Justice Elena Kagan and joined by Chief Justice John Roberts, Kagan praised Warhol as the “avatar of transformative copying” and faulted her colleagues in the majority with a “lack of appreciation for the way his [Warhol’s] works differ in both aesthetics and message” from the original photograph.

In a statement, Joel Wachs, the president of The Andy Warhol Foundation for the Visual Arts, said the foundation disagrees with the court’s decision but welcome the justices’ “clarification that its decision is limited to that single licensing and does not question the legality of Andy Warhol’s creation of the Prince Series in 1984.”  Photographer Lynn Goldsmith said in a statement that she was “thrilled by today’s decision.” “This is a great day for photographers and other artists who make a living by licensing their art.”

A concise summary of the Supreme Court decision can be found in this Reuters Article. The 87-page Supreme Court opinion can be found here: Supreme Court Opinion