Image Credits: @mmmingjun on Unsplash (Unsplash License)

Andy Warhol was a significant figure in the pop art movement that developed in the 1950s. He is responsible for many famous pieces of art, including photos of celebrities like Marilyn Monroe and Elvis Presley. As part of a 1984 commission for Vanity Fair Magazine, Warhol created a series of silk screen images based on a photo Lynn Goldsmith took of singer Prince in 1981. After learning about the piece, Goldsmith countersued the Andy Warhol Foundation in 2017, claiming that Warhol violated her copyright, though Warhol argued that his modifications were transformative and made new art. After years of litigation, this matter went to the Supreme Court and they agreed with Goldsmith. Andy Warhol Found. For the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023).

On May 18, 2023, in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the United States Supreme Court held that Andy Warhol was complicit in infringing on Lynn Goldsmith’s copyright when he modified and painted on her photo of Prince. 

The original Lynn Goldsmith photograph of Prince, left, which Andy Warhol altered, right, by adding a red background and making Prince’s face purple. What is unique about this case is that  SCOTUS had to determine what constitutes art and who owns it. SCOTUS’s ruling in favor of Goldsmith implies that for a creative work based on another piece of artwork to be considered fair use, it must entail a more extreme level of reworking in order for it to not infringe on the original artist’s copyright. For years, debates regarding fair use and copyright have circulated throughout the artwork industry, and this landmark decision set a precedent that will determine the future of creative freedom in the art world. 

In order to understand the Andy Warhol case, it is important to grasp the concept of fair use. Fair use is a legal doctrine that allows for the use of copyrighted work without the permission of the copyright holder (under certain circumstances such as criticism, commentary, news reporting, teaching, scholarship, or research). Fair use cannot be used as a method of exploitation to allow another party to profit through the commercialization or sale of the original artwork. In the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, Warhol’s use of Goldsmith’s photograph does not represent fair use. Warhol purchased Goldsmith’s photograph, painted over it, and then sold it many times over.  Goldsmith argues that Warhol’s silkscreens were used for a similar purpose as the original; additionally, they were used for a commercial purpose (meaning for sale to the public), thereby violating fair use. 

For decades, courts have wrestled with the degree to which artists can adopt from previous works without violating the original artist’s copyright. Lower courts have sided both ways in the past, with major artists such as Jeff Koons winning some and others losing. In a recent case before the Warhol decision, artist Koons was sued because of his reinterpretation of another artist’s work, specifically, Made in Heaven. Hayden v. Koons, 2022 WL 2819364 (S.D.N.Y. July 18, 2022). 

Figure 1: Made in Heaven (Koons 1989)

  Figure 2: Serpent Sculpture by Michael Haynes (1988)

The original artist successfully claimed Koons’s reworking of his art was theft and Koons’s claim that it was fair use failed. 

In another case, Artist Richard Prince was sued for his reuse of photos he found on Instagram. Graham v. Prince, 15-CV-10160 (SHS) (S.D.N.Y. Jul. 6, 2023). Prince reproduced the Instagram posts on enlarged canvases. This led to contempt for the artists whose photos Prince reused because they did not appreciate Prince changing their photos and attempting to call them original works by him. Some comments claimed his interpretation was a new art. Others claimed that his artwork was appropriating other artists. This was a major cause for controversy, with some users calling Prince’s  art “reckless,” “uninformed,” and “embarrassing.”

Donald Graham’s Rastafarian Smoking a Joint (left) and Richard Prince’s Untitled (Portrait of Rastajay92) (right).

Though Prince claimed that his interpretation was consistent with fair use, the courts did not agree.

The Supreme Court often agrees to take on cases in order to answer questions of legal uncertainty, and in the Warhol case, it did just that. SCOTUS’s recent decision provided a new answer to a lengthy discussion, and courts across the United States now have a final decision, the Warhol case, on which they can base future rulings. The most recent ruling makes it clear that artists’ ability to borrow and model off of previous works will not be allowed without providing compensation to the original owner of the art.

In 2021, the United States Supreme Court ruled on another fair use case, Google LLC v. Oracle America, Inc. However, SCOTUS took a different approach with this case than it did with the Warhol case. Oracle claimed that Google stole roughly 11,500 lines of code that it proceeded to use for commercial purposes. One may think that SCOTUS would rule the same as in Warhol – theft is theft, but that is not what SCOTUS did. Rather, SCOTUS focused on a new element, public interest. Essentially, the Supreme Court held that because the use of the code was for the benefit of the public interest, it is fair use. According to SCOTUS, the theft in this case was not theft – it was borrowed, therefore Google did not owe Oracle anything for using the code. There is a great distinction between the two cases in terms of fair use, and SCOTUS’s most recent decision provides a legal precedent that will be used for the foreseeable future due to the implications of Supreme Court decisions.

The contentious nature of this high-profile case stems from a longstanding debate regarding artists’ freedom of expression and copyright infringement. Legally determining the extent to which artists can be creative has proven challenging; however, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith provided a resolute answer to a lengthy discussion. The 7-2 vote elucidates that artwork needs to be “sufficiently transformative” in order for it to not bear on copyright infringement. According to Justice Sotomayor, who ruled in favor of Goldsmith, if an original piece of artwork and another “share the same or highly similar purposes” and are both used in a “commercial nature,” then it is improbable that the fair use doctrine is applicable. 

In sum, the 2023 Warhol case makes it clear that if a secondary piece of art is not clearly distinguishable from the original, then it is likely in violation of copyright law. In the future, some artists may attempt to argue that their reworking of another artist’s piece of art somehow benefits the public interest enough for the fair use argument to prevail. However, this may be a high bar to meet in the art world as art is incredibly subjective and it would be difficult to claim that the reworked art really made a difference in people’s lives. In the meantime, artists will have to be mindful of other artwork they incorporate into their own pieces.