Pop music and the arts converge on Wednesday before the US Supreme Court hearing whether a photographer should be compensated for a picture she took of Prince that was used in a work by Andy Warhol.
The Andy Warhol Foundation for the Visual Arts v. Goldsmith case could have far-reaching implications for US copyright law and the art world.
It comes from a black-and-white photograph taken in 1981 by famed photographer Lynn Goldsmith of Prince, a then-up and coming young musician from Minneapolis.
In 1984, when Prince’s Purple Rain album was just beginning, Vanity Fair asked Warhol to provide an image to accompany a story about the musician in the glossy magazine.
Warhol used one of Goldsmith’s photographs to silkscreen a purple-faced Prince in the familiar colorful style the artist made famous with his portraits of Marilyn Monroe.
Goldsmith was credited as the photographer and was paid $400 for the one-time use rights.
After Prince’s death in 2016, the Andy Warhol Foundation, established after the artist’s death in 1987, licensed another image of the musician that Warhol had taken from the Goldsmith photo to Vanity Fair publisher Conde Nast .
This portrait—Warhol made 16 of them—showed Prince with an orange face instead of a purple one.
Conde Nast paid the Foundation a license fee of $10,250.
Goldsmith did not receive anything, claiming that her copyright on the original photo was infringed.
“No credit or payment to Goldsmith this time,” her attorneys said in a brief letter. “Copyright law cannot possibly dictate one rule for purple screenprints and another for orange ones.”
– split rulings –
The Warhol Foundation countered by arguing that Warhol’s “Prince Series” was “transformative” and therefore not infringing copyright.
“Goldsmith is asking for something remarkable here,” the foundation said in its letter.
“She wants the court to find that the works of Andy Warhol — universally recognized as a creative genius who pioneered the 20th-century pop art movement — are non-transformative and therefore illegal.”
Two lower courts issued separate decisions and referred the case to the Supreme Court.
In 2019, a US District Court judge in Manhattan ruled in favor of the Warhol Foundation.
“The work in the Prince series can reasonably be perceived as having transformed Prince from a vulnerable, awkward person into an iconic, larger-than-life character,” the judge said.
“The humanity Prince embodied in Goldsmith’s photo is gone,” the judge said. “Furthermore, each work in the Prince series is immediately recognizable as ‘Warhol’ and not a photograph of Prince.”
However, an appeals court disagreed last year, saying, “The district judge should not take the role of an art critic trying to ascertain the intent behind or the meaning of the works in question.”
According to the court, the decisive factor is whether the new work “recognizably descends from its original material and also retains its essential elements.
It states that the Warhol series “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements”.
After hearing Wednesday’s hearing, the Supreme Court’s nine justices will decide whether Warhol’s work is transformative and worthy of protection or constitutes an infringement.
They will issue their decision by June 30th.
