The Supreme Court’s Warhol decision could have huge copyright implications for ‘fair use’

The justices decided that Warhold's work was not 'transformative' enough to prevent copyright claims.


The Supreme Court has ruled that Andy Warhol has infringed on the copyright of Lynn Goldsmith, the photographer who took the image that he used for his famous silkscreen of the musician Prince. Goldsmith won the justices over 7-2, disagreeing with Warhol's camp that his work was transformative enough to prevent any copyright claims. In the majority opinion written by Justice Sonia Sotomayor, she noted that "Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists."

Goldsmith's story goes as far back as 1984, when Vanity Fair licensed her Prince photo for use as an artist reference. The photographer received $400 for a one-time use of her photograph, which Warhol then used as the basis for a silkscreen that the magazine published. Warhol then created 15 additional works based on her photo, one of which was sold to Condé Nast for another magazine story about Prince. The Andy Warhol Foundation (AWF) — the artist had passed away by then — got $10,000 it, while Goldsmith didn't get anything.

Typically, the use of copyrighted material for a limited and "transformative" purpose without the copyright holder's permission falls under "fair use." But what passes as "transformative" use can be vague, and that vagueness has led to numerous lawsuits. In this particular case, the court has decided that adding "some new expression, meaning or message" to the photograph does not constitute "transformative use." Sotomayor said Goldsmith's photo and Warhol's silkscreen serve "substantially the same purpose."

Indeed, the decision could have far ranging implications for fair use and could influence future cases on what constitutes as transformative work. Especially now that we're living in the era of content creators who could be taking inspiration from existing music and art. As CNN reports, Justice Elena Kagan strongly disagreed with her fellow justices, arguing that the decision would stifle creativity. She said the justices mostly just cared about the commercial purpose of the work and did not consider that the photograph and the silkscreen have different "aesthetic characteristics" and did not "convey the same meaning."

"Both Congress and the courts have long recognized that an overly stringent copyright regime actually stifles creativity by preventing artists from building on the works of others. [The decision will] impede new art and music and literature, [and it will] thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer," she wrote.

The justices who wrote the majority opinion, however, believe that it "will not impoverish our world to require AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work. Recall, payments like these are incentives for artists to create original works in the first place."