Lynn Goldsmith triumphs in Supreme Court copyright case determining limits of fair use

Internationally recognized photographer, artist, entertainer and part-time Aspen local Lynn Goldsmith had no idea this would be the day the U.S. Supreme Court would rule in her favor in a key copyright case involving her iconic photo of Prince, Andy Warhol, and what constitutes fair use of artists’ work.

“I woke up in Nashville this morning and got a call from friends of mine whose daughter is in law school and had been following the case. They called me and said, ‘You won! You won!’ And I went, ‘What did I win? What are you talking about?” she said late Thursday afternoon with a tired laugh. “The case has been in the hands of the Supreme Court to decide since Oct. 20, 2022. You just don’t know when they’re going to try these cases or when they’re going to decide.”

Her case, Andy Warhol Foundation for the Visual Arts Inc. v. Lynn Goldsmith, hinged on her claim that the late Andy Warhol’s estate had violated her copyright on a photograph of the entertainer Prince.

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“I really felt like this is where our justice system will reveal itself in terms of interpretation of the law, she said. “And I’m just really thankful that seven out of the nine felt that way.”

The case revolved around an image Warhol created of Prince as part of a 1984 commission for Vanity Fair. Goldsmith’s original photo was in black and white, while Warhol’s were cropped, colorful, and in his signature style.

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At the time, Vanity Fair chose Prince with a purple face to run in the magazine, they obtained one-time use-only permission from Goldsmith for the 1984 print edition of Vanity Fair for artist reference. The photo credit to Lynn Goldsmith had to appear alongside the the illustration, which it did. Warhol never received rights to make art or to license the illustration he made beyond that.

After Prince’s untimely 2016 death, Vanity Fair licensed a second image, “Orange Prince,” from The Warhol Foundation for a licensing fee of $10,250 to publish the image. Goldsmith received nothing.

In 2016, The Andy Warhol Foundation pre-emptively sued Goldsmith when concerns regarding use of her second image came up.

“I think they misjudged when they sued me for my own copyrighted photo,” said Goldsmith. “They thought they were going after a woman or girl, and they should have looked deeper. As a baby boomer, I didn’t get to do what I did by being someone who just accepted things that people wanted me to do or not give me credit or whatever. I didn’t get here by kowtowing to power.”

Lawyers for Warhol’s foundation argued that the artist had transformed the photograph and was therefore protected by the “fair-use” doctrine.

“Fair use” is a legal doctrine in copyright law that “promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances,” according to a description from the U.S. Copyright Office. There are four factors that courts consider when determining fair use: (1) the purpose and character of the use (i.e. commercial or educational, etc.); (2) nature of the copyrighted work (a news article is more likely to be subject to fair use than a creative work like a movie or song); (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the market or value of the copyrighted work.

The case made its way through lower courts and appeals before landing before the U.S. Supreme Court last year. The majority of the justices said a lower court had correctly sided with Goldsmith.

“Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Justice Sonia Sotomayor wrote in an opinion joined by six of her colleagues. “But she too was a trailblazer.”

Some amount of copying is acceptable under copyright law as “fair use.” To determine whether something counts as fair use, courts look to the four factors set out in the federal Copyright Act of 1976. A lower court found that all four factors favored Goldsmith. Only the first factor was at issue in the Supreme Court case and Sotomayor wrote: “The first factor favors Goldsmith.”

“This legal battle has been a long road at great emotional and financial impact upon me and my family,” Goldsmith said. “I felt I had to risk everything financially in order to fight in the courts for protection of my rights and those of all in the arts against those who would infringe.”

In dissent, Justice Elena Kagan argued that the decision would “stifle creativity of every sort” and asked, “If Warhol does not get credit for transformative copying, who will?” She was joined in her dissent by Chief Justice John Roberts.

“When Justice Kagan commented that this will be hard on all creators, future artists, blah, blah, blah, I wanted to scream out, ‘Wait a minute!’ There’s so much work in the public domain that anyone can access. You don’t need to ask permission. But if an image is copyrighted, you have to ask permission,” Goldsmith said. “I’m disappointed in Justice Kagan, both as a woman and a Supreme Court justice, because I find the comment insulting and hurtful to the future of all artists who aren’t already supremely famous and rich.”

Goldsmith said that while she is pleased with the ruling, she hopes it will serve as a reminder to everyone to stand up and fight for their constitutional rights, no matter the cost.

“Thankfully, I won.” she said. “But the fact is that if we don’t stand up for our rights, we lose them, and that affects us every day, beyond this battle. So if that message can resonate somehow, it’s even more important to me that people do not let themselves be bullied into fear that keeps them from their constitutional rights. You have to fight the fight. There’s really no other option. Some people think, ‘What difference does it make?’ It does make a difference.”

As for what Goldsmith will do next, she said, “I’m going to turn off my phone. It’s been a long day.”