Rock ‘n’ roll portrait photographer Lynn Goldsmith won her case at the Supreme Court on Thursday against the Andy Warhol Foundation, and she called it a victory for artists and photographers who make their living by licensing art.
The question before the Supreme Court was whether the “fair use” doctrine of the Copyright Act protected artist Andy Warhol, who used the images of Prince captured by Goldsmith to create new works of art without her credit or consent.
In a 7-2 decision, the Supreme Court decided that “If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.”
Goldsmith celebrated the victory in an Instagram post, saying she is “thrilled” and “thankful to the Supreme Court for hearing our side of the story.”
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In 1981, Goldsmith took a series of photographs of the musician, Prince, after pitching him to the photo editor of Newsweek as “the next big thing.”
When Prince’s “star exploded” with the release of his Purple Rain album three years later, Vanity Fair commissioned Andy Warhol to recreate – with permission and licensing fees – one of the photographs from Goldsmith’s 1981 shoot. But Warhol also used her work to create an entire series of silkscreen images without her permission.
In 2016, after Prince died, Vanity Fair published one of Warhol’s recreated images saturated in bright orange paint for its cover. Goldsmith realized then that her photographs were being used without her permission or credit.
According to the legal filings, the Andy Warhol Foundation (AWF) charged Conde Nast – Vanity Fair’s parent company – $10,000 for use of the images and required the magazine to credit AWF. Goldsmith received no credit.
Justice Sonia Sotomayor, author of the majority opinion, wrote, “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
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“Such protection includes the right to prepare derivative works that transform the original. The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original,” she wrote.
“In this case, however, Goldsmith’s original photograph of Prince, and AWF’s [Andy Warhol Foundation] copying use of that photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same purpose, and the use is of a commercial nature,” she said.
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Republican Sen. Marsha Blackburn, R-Tenn., who filed an amicus brief in support of Goldsmith, commented by saying that the ruling was a “tremendous win” for the creative community.
“Tennessee is home to countless singers, songwriters, and content creators whose ability to earn a living depends upon their right to receive fair compensation for their work,” she said in a statement to Fox News Digital.
“That’s why I led an amicus brief in AWF v. Goldsmith supporting protections for our artists that encourage them to create and innovate. The Supreme Court’s decision in AWF v. Goldsmith is a tremendous win for these artists and the creative community as a whole,” she said.
Justice Elena Kagan, joined by Chief Justice John Roberts, dissented from the majority and called the opinion” troubling.”
“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.
“Goldsmith would probably have granted Warhol a license with few conditions, and for a price well within his budget. But as our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove… It will stifle creativity of every sort,” Kagan continued.
“It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer,” she said.
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