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Were Warhol’s ‘Prince’ silkscreens transformational? Supreme Court says no

On Behalf of | May 18, 2023 | Intellectual Property |

When Andy Warhol used Lynn Goldsmith’s photograph of Prince as the basis for his silkscreen “Prince” series, his treatment of the photograph was not transformational, the U.S. Supreme Court has said. Because it was not, Warhol’s treatment was not protected by the fair use exception to the Copyright Act.

When the silkscreens were later licensed to magazines and venues, this commercial use violated Goldsmith’s copyright.

“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” wrote Justice Sonia Sotomayor for the majority in the 7-2 ruling.

What is the fair use exception?

The Copyright Act allows the “fair use” of copyrighted works. For example, a reviewer might include a short quote from a book or movie in their review without violating the copyright of the work.

What, exactly, constitutes a fair use is fact-specific and decided by courts when disputes arise. The courts are instructed to evaluate both the purpose and the character of the use. Unpaid commercial uses are considered the least likely to be fair.

It’s clear the purpose of the Warhol silkscreens was commercial, if artful. The Warhol foundation has licensed the “Prince” series broadly in museums, galleries, books and magazines. They have never paid a penny to Lynn Goldsmith for the use of her photograph. They argued that Warhol’s treatment of the photograph was transformational, and therefore that it was fair use.

A federal judge ruled for Warhol, but the foundation lost on appeal. The U.S. Supreme Court just announced its decision.

The first factor the court considered was “whether the use of a copyrighted work has a further purpose or different character” than the original work. The court found that both the photograph and the silkscreen series were meant to represent and commemorate the artist Prince and were both licensed to magazines for a that purpose.

Since the court found that Warhol’s use did not have a further or different purpose, and since that purpose was commercial, Warhol’s use of Goldsmith’s photograph was not fair.

The court rejected the Warhol Foundation’s characterization of the use as “transformative.”

“As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use,” wrote Sotomayor.

Justice Elena Kagan and Chief Justice John Roberts dissented.

“This is a great day for photographers and other artists who make a living by licensing their art,” said Goldsmith in a statement.

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