A number of sources have reported that the U.S. Supreme Court ruled on May 18 that Andy Warhol’s silkscreen portrait of Prince infringed on photographer Lynn Goldsmith’s copyright. The court’s 7-2 decision, authored by Justice Sonia Sotomayor, noted that Warhol’s work did not constitute “fair use.”
Pitchfork notes that Warhol created a brightly colored treatment of Goldsmith’s 1981 black and white photograph for Vanity Fair’s November 1984 issue; it was published with permission from Goldsmith. However, different unlicensed images were created by Warhol and published in the magazine’s 2016 Prince Tribute. The Andy Warhol Foundation authorized their publication, and Goldsmith wasn’t credited.
Goldsmith and the Warhol Foundation sued each other in 2017, and in 2019, a federal judge ruled in the foundation’s favor. At the time, the judge claimed that Warhol’s work was transformative. However, in 2021, an appeals court ruled in Goldsmith’s favor, prompting the Warhol Foundation to seek a Supreme Court review.
The supreme court found that it was not transformative because it served the same commercial purpose as Goldsmith’s photo: to depict Prince in a magazine. Differing from Warhol’s other famous pop art, like his prints of Campbell’s soup cans.
The last time the supreme court ruled on fair use in art was in 1994, when it ruled in favor of 2 Live Crew’s parody of the singer Roy Orbison’s “Oh, Pretty Woman.”
