Artists await U.S. Supreme Court decision in case involving Warhol, Prince, and Aspen photographer Lynn Goldsmith
From abortion to immigration to voting rights, the U.S. Supreme Court’s docket of contentious issues this year also includes a battle over copyright and fair use involving Andy Warhol, Prince … and local photographer Lynn Goldsmith.
On Oct. 12, the high court heard arguments in Andy Warhol Foundation v. Goldsmith in what observers have said could spawn a precedent-setting decision that will affect artists and guide lower courts when similar disputes arise.
Lawyers for the Warhol Foundation argued at the October hearing that the late pop artist’s recreated images of Goldsmith’s photographs of Prince fell within copyright laws’ fair use doctrine, and the foundation wasn’t required to pay Goldsmith a licensing fee to publish the images. That’s because Warhol’s Prince Series created a different meaning than the original photo taken by Goldsmith, Roman Martinez argued to the high court.
Martinez said “the stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from the Prince Series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”
Goldsmith, who lives full time in Nashville and keeps a condo in Aspen, took photographs of Prince in 1981, and Warhol used one of them as the basis for an image he created for Vanity Fair in 1984. Vanity Fair paid Goldsmith a one-time licensing fee of $400 and credited her copyrighted photograph as the source for Warhol’s work.
It wasn’t until 2016, the year Prince died, however, that Vanity Fair‘s parent company, Condé Nast, published another one of Warhol’s recreated images of Goldsmith’s Prince photograph, which led to the current copyright stand-off. The new image was called “Orange Prince,” named so because it was silkscreened orange and ran on the cover of a special tribute edition published by Condé Nast. Goldsmith received no compensation for her copyright, but Condé Naste paid the Warhol Foundation a licensing fee to use the image.
“The Andy Warhol Foundation charged Condé Nast a $10,250 licensing fee to publish the image,” explained a preview of the October hearing on the court’s website. “The question for the justices is whether that second use — for which the magazine did not pay Goldsmith — infringes Goldsmith’s copyright in the photograph on which Warhol based all the images.”
The Warhol Foundation, Goldsmith’s lawyer Lisa Blatt argued to the Supreme Court, “has never given any reason for copying Ms. Goldsmith’s picture to commercially license Warhol’s Orange Prince in 2016. Indeed, Warhol got the picture only in 1984 because Ms. Goldsmith was paid and credited.”
Blatt, went on to say that the foundation wasn’t entitled to use Goldsmith’s image without paying a license fee simply because of Warhol’s distinctive style. Other iconic artists have played by the rules, she argued.
“But Spielberg did the same for films and Jimi Hendrix for music,” Blatt said. “Those giants still needed licenses. Even Warhol followed the rules. When he did not take a picture himself, he paid the photographer. His foundation just failed to do so here.”
Goldsmith, who has freelanced for The Aspen Times over the years and also once owned the The Lynn Goldsmith Gallery in Basalt, said she could not talk about the case until the Supreme Court renders a decision. Her heralded photography career has included Bruce Springsteen, Michael Jackson, The Rolling Stones, Patti Smith, and the Police as subjects.
The Andy Warhol Foundation is the petitioner in the case that was argued before the Supreme Court. Lawyers for the foundation brought the case to the high court after the 2nd Circuit Court of Appeals held that Warhol’s work was not a fair use. But, if Warhol’s Prince Series had run in a museum of modern art, for instance, Goldsmith would have not challenged the use. Because they were published in the commercial market, however, the photographer challenged the use in court.
“If you really wanted to know what Prince looks like,” observed Chief Justice John Roberts about Warhol’s work, “you wouldn’t get that from Warhol’s depiction. He doesn’t have one eye that’s, you know, blacker than the other. He — his head doesn’t float in the air as it does in Warhol’s but not in Goldsmith’s.”
Roberts also noted that “unlike Goldsmith’s photograph, Warhol sends a message about the depersonalization of modern culture and celebrity status.”
Warhol’s other works derived into art, like Campbell’s Soup Cans from 1962, were fair use “because the purpose of the use for Andy Warhol was not to sell tomato soup in the supermarket,” noted Justice Neil Gorsuch. “It was to induce a reaction from a viewer in a museum or in other settings. And, the difficulty of this case is that this — this particular image is being used arguably maybe for the same purpose, to identify an individual in a magazine, OK, in a commercial setting. So, the Campbell’s Soup one seems to me a very different case. This is a much harder case.”