Supreme Court rules against Andy Warhol estate in major copyright clash

The Supreme Court in a 7-2 decision Thursday sided against Andy Warhol’s estate in a major copyright clash involving the late artist’s famed Prince series.

The court rejected that one of Warhol’s silkscreens was immune from celebrity photographer Lynn Goldsmith’s copyright claims, tossing arguments that it was transformative enough to constitute a “fair use.”

“To rule otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same,” Justice Sonia Sotomayor wrote for the majority.

The case, closely watched by artists and creators, involved a dispute between Goldsmith and The Andy Warhol Foundation for the Visual Arts, which owns the late artist’s intellectual property.

Goldsmith’s company had licensed her photo of Prince to Vanity Fair so Warhol could use it as an “artist reference” to create a one-time illustration of Prince for the magazine’s November 1984 issue. Although only one silkscreen ran in the issue, Warhol made 14 illustrations based on Goldsmith’s photo. 

After Prince died in 2016 of an accidental fentanyl overdose, Warhol’s foundation licensed a different work in the series, known as “Orange Prince,” to Condé Nast, which published it. Goldsmith told the foundation she believed her copyright was infringed. 

The foundation then preemptively sued Goldsmith, seeking a court declaration that Warhol’s work did not violate copyright laws. Goldsmith countersued.

An appeals court sided with the celebrity photographer, ruling that the court was forbidden from playing the role of art critic and considering the meaning of Warhol’s work in its copyright analysis.

The foundation asserted fair use by arguing the “purpose and character” of its 2016 license to Condé Nast was different enough from Goldsmith’s photo. Goldsmith’s portrayal was more photorealistic, whereas Warhol’s silkscreen portrayed Prince as iconic, the foundation argued.

But Sotomayor rejected those arguments, writing that the copying of Goldsmith’s photo was of a commercial nature and that both works “substantially” shared the same purpose.

“Both are portraits of Prince used in magazines to illustrate stories about Prince,” Sotomayor wrote, affirming the lower ruling.

Sotomayor’s opinion was joined by most of the court’s conservative bloc — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — and liberal Justice Ketanji Brown Jackson.

Liberal Justice Elena Kagan, joined by Chief Justice John Roberts, dissented.

“Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more,” Kagan wrote.

Read the decision, which includes images of the Prince portrait and silkscreen, here:

Updated at 2:54 p.m.