Not many intellectual property cases make it to the U.S. Supreme Court, but one that involves two deceased pop icons is headed to the high court. Their ruling could affect decisions in other cases involving copyright infringement and fair use protection.
The case involves a series of 16 paintings done by the late artist Andy Warhol of Prince. He based the paintings on a photo of the musician taken by photographer Lynn Goldsmith, who copyrighted her photo.
The legal battle began with a Vanity Fair cover
The photographer and the Andy Warhol Foundation for Visual Arts have been in a legal battle for five years now. She contends that Warhol violated her copyright by displaying his series in various public venues, including museums. One appeared on the cover of Vanity Fair shortly after Prince died in 2016.
Warhol’s paintings are essentially painted-over versions of the photo. However, the Warhol Foundation is arguing that the works are “entirely new creations” and meant to be a commentary on things like celebrity.
Federal and appellate courts reached different conclusions
A federal judge agreed. He ruled that the paintings, which were “transformative” enough of the original photo that they were protected under the fair use doctrine. In his ruling, he said that Warhol had changed Prince’s photographed image “from a vulnerable, uncomfortable person…to an iconic, larger-than-life figure.” He also noted that each painting is “immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.”
An appellate court reversed that judge’s ruling, taking a swipe at him for playing the “role of art critic…[to] ascertain the intent behind or meaning of the works at issue.” It ruled that Warhol’s works weren’t protected by the fair use doctrine.
The Warhol Foundation’s attorneys are now going to argue their case before the Supreme Court. In a likely preview of the case, the foundation has asserted that the appellate court ruling “chills artistic speech by imposing the threat of ruinous penalties on artists who must predict…whether their new work will be deemed too ‘recognizable’ to merit fair use protection.”
Some copyright infringement cases are more subjective than others. Those involving works of art can certainly be less clear than those that most businesses deal with. Nonetheless, whichever side of the case you’re on, it’s wise to have highly experienced legal guidance.