Supreme Court Skeptical Warhol Made Fair Use of Portraits

Photographer Lynn Goldsmith sued the Andy Warhol Foundation in 2017, claiming Warhol violated her copyright when he created a series of silkscreens reproducing Goldsmith’s portraits of Prince, which wasn’t brought to her attention until 2016, when the work appeared in Conde Nast. Warhol added new elements to the portrait and licensed it to Vanity Fair in the 1980s. A Manhattan federal court sided with the foundation in 2019, but the 2nd U.S. Circuit Court of Appeals reversed the decision in 2021, saying Warhol’s silkscreens didn’t constitute a “transformative use.” The Supreme Court heard oral argument Wednesday in docket 21-869. Warhol attorney Roman Martinez told the court Goldsmith is demanding a “seven-figure sum.”

Film companies are required to pay authors when they repurpose books, and most filmmakers would probably assume their work is “transformative” with the addition of new dialogue, characters, themes and messages, said Justice Elena Kagan: “Why is it that we can’t imagine that Hollywood could just take a book and make a movie out of it without paying?”

Transforming a book into a movie doesn’t inherently change the “meaning or message,” and if it did, it would be “very slight,” Martinez told the court. He said for an author the most natural derivative market is film. Justice Brett Kavanaugh asked whether the classic example for photographers would be having their work used in magazine stories about the subject and therefore resulting in competition in the same market.

Martinez disagreed, saying the primary work wouldn’t actually compete: “I don’t think the standard use of Goldsmith’s work is to create Warhol-style, transformed celebrity fine art portraits.” Warhol “infused new meaning” on top of the original work, Martinez said. He argued Goldsmith’s work portrays a “vulnerable” and “shy” side of Prince, while the Warhol silkscreens present ideas about the dehumanizing impact of celebrity on a person.

“You make it sound simple, but maybe it’s not so simple to determine the meaning or the message of a work of art,” said Justice Samuel Alito. “There can be a lot of dispute about the meaning or message.” The Supreme Court’s decision in Campbell v. Acuff-Rose Music, which concerned Warhol’s use of Campbell’s soup products in his work, solves that problem, said Martinez: The court said the fact-finder doesn’t need to determine the exact message; it needs only to conclude a new meaning or message could be reasonably perceived.

Justice Sonia Sotomayor noted the Supreme Court’s decision in Google v. Oracle (see 2104050047), in which the court said Google’s copying of Oracle’s Java code for Android is fair use. That case dealt with a new Google product that had a new function created from the repurposed code, said Sotomayor: “That’s a fairly high level of generality.”

The Goldsmith photograph competes with the Warhol work for use in magazines, but it would be a different situation if the Warhol work were placed in a museum, said Kavanaugh. Kagan cited the influence of a famous artist like Warhol, saying it’s easier to claim he made transformative use than it would be to claim an unknown artist made the same transformative use: “You might be tempted to say something like, ‘Well I don’t get it. All he did was take somebody else’s photograph and put some color into it.'” Chief Justice John Roberts asked if a new artist changed the color of Warhol’s work and claimed it as his own, would it be considered transformative use. With only minor changes, it wouldn’t result in a new meaning or message, said Martinez.

Justice Clarence Thomas asked if he could take the Warhol work and repurpose it as merchandise for a football team without threat of lawsuit. It’s unlikely a court would look at that as productive creativity, said Martinez. Thomas suggested Martinez was switching to Goldsmith’s side of the argument to suit his own purposes. Martinez disagreed, again claiming Warhol’s transformative message. Thomas said he could just add the words “Go Orange” in support of Syracuse to change the message.

One key difference is Warhol’s audience versus Goldsmith’s, said Martinez, arguing Goldsmith’s work is targeted to “photo-realistic” magazines like Newsweek or rock magazines, while Warhol’s is fine art that sells for “a lot more.” Justice Ketanji Brown Jackson challenged that, saying the purpose of both works is the same: to make a profit. Justice Neil Gorsuch asked Martinez to defend his case against arguments that Warhol’s use presents an “existential threat” to photographers’ livelihood.

The reasoning for taking someone’s copyrighted work can’t be to avoid paying the customary price for the drudgery of coming up with original work, Goldsmith attorney Lisa Blatt told the court: “The copier has to explain why it needed, not just wanted, to use someone else’s expression.” The foundation has never given a reason for commercially licensing Warhol’s prints in 2016. Filmmaker Steven Spielberg has to license work he uses in films, and guitarist Jimi Hendrix had to license songs he covered, said Blatt. She claimed Warhol paid photographers for other works, but his foundation failed to do so in this instance.

Roberts suggested there are key differences between the Warhol work and Goldsmith’s portrait: Warhol sends a message about the depersonalization of modern culture. “It’s not just a different style. It’s a different purpose,” said Roberts. Museums show Warhol works because he was a “transformative artist,” taking photographs of Elvis Presley and Marilyn Monroe and giving them unanticipated meaning, said Kagan: “They say this has an entirely different message from the thing that started it all off, and that’s why he’s hanging in museums.”

Regardless of the justification in repurposing the work or the meaning and message, it’s a highly commercial use of the work that usurps the market for Goldsmith’s original work, said Yaira Dubin, assistant to the solicitor general at DOJ, which sided with Goldsmith in the case.