Supreme Court To Hear Andy Warhol Copyright Infringement Suit
When Andy Warhol passed away, he left behind an irreplicable legacy in the art world. His innovative vision made his name inseparable from the visual art movement known as pop art. However, Warhol’s name may now be inseparable from something he may not have predicted: intellectual property and copyright law. Last month, the United States Supreme Court granted certiorari in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.[1] Here, the Court will attempt to clarify the long-standing question of when art is a fairly transformative use, or an unfair and potentially infringing use, of a copyrighted work.[2]
In 1981, Lynn Goldsmith took a photo of Prince on behalf of Newsweek.[3] However, it was never published, and Vanity Fair licensed the portrait for an illustration by Warhol in 1984.[4] Following Prince’s death in 2016, Vanity Fair republished the image without crediting Ms. Goldsmith.[5] The Andy Warhol Foundation then filed a pre-emptive lawsuit asking for a declaratory judgment that Warhol’s series did not violate Ms. Goldsmith’s copyright.[6] Ms. Goldsmith filed a countersuit shortly after.[7]
The Copyright Act of 1976 allows one to gain ownership of their created work.[8] Its purpose was to promote the progress of science and useful arts. So, if someone uses the copyrighted material without permission, the owner can sue for damages. [9] However, the fair use defense is a statutorily created exception that allows for the use of some copyrighted material.[10] The purpose of the exception is to balance incentivizing the creation of new work and making sure the public can access and benefit from it.[11] The factors include: the purpose and character of the use including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount of substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for, or value of, the copyrighted work.[12] Further, just because the copyrighted work is unpublished does not bar a finding of fair use on its own.[13]
While the Copyright Act clearly lists the relevant considerations, courts still struggle to determine what constitutes fair use. Often, courts will attempt to discern whether one’s work is transformative.[14] The more transformative the final product is, the more likely it is to be fair use.[15] Here, the District Court held that Warhol’s work was transformative because Goldsmith’s portrayal of Prince had a different meaning than Warhol’s.[16] They reasoned that Ms. Goldsmith intended to portray Prince as a “vulnerable human being,” while Warhol’s was to portray him as an “iconic, larger-than-life figure.”[17]
However, the Second Circuit took a different approach. They held that the District Court improperly “assume[d] the role of art critic and seek[ed] to ascertain the intent behind” Warhol’s work.[18] Instead, the Second Circuit focused heavily on the fact that the Warhol series retained the “essential elements of the Goldsmith Photograph without significantly adding or altering those elements.”[19] Thus, maintaining the photo’s key elements harmed the potential market for Goldsmith’s photo.[20]
Following the Supreme Court’s recent holding in Google LLC v. Oracle America, Inc., the Warhol Foundation filed an en banc petition for the Second Circuit to reconsider its ruling.[21] In Google LLC v. Oracle, America, Inc., the Supreme Court noted that for transformative works, the work in question must “add something new and important,” which could be done by changing the original work’s purpose or meaning.[22] So those in favor of the S.D.N.Y’s holding in the Warhol dispute argue that his work creates a new and different meaning to the work, like the holding in Google.[23] However, the Second Circuit held that the holding in Google was misplaced, as it was an unusual case involving computer code.[24]
Because now the Second Circuit and the Ninth Circuit, where more than half of all copyright cases arise each year, have vastly different approaches the Supreme Court granted certiorari to answer this essential issue.[25] Like the S.D.N.Y’s holding in Warhol, the Ninth Circuit focuses on the meaning behind the work, and whether it has a different purpose, character, or message than the original’s.[26] For example, in Seltzer v. Green Day, the Ninth Circuit held that Green Day’s use of the street artist’s work in its music video was transformative even though they made “few physical changes to the original.”[27] The Warhol Foundation argues that the Ninth Circuit approach favors artists, while the Second Circuit’s ruling “[chills] artistic speech by imposing the threat of ruinous penalties on artists who must predict – ex ante – whether their new work will be deemed too ‘recognizable’ to merit fair use protection.”[28] Others argue that the Second Circuit’s opinion that Google isn’t applicable is wrong.[29] If Google can use another company’s coding for a different purpose, then Warhol should be able to as well.
However, if the United States Supreme Court upholds the Second Circuit ruling, it will significantly affect the art industry. Warhol’s work, specifically, consistently uses third-party photographs without a license. This would lead to a flood of lawsuits against Warhol and other pop art artists.[30] While the Warhol Foundation understandably opposes this rule, many would agree with the Second Circuit’s holding that art is inherently subjective and courts should not base their analysis on what they believe an artist’s intentions were.[31] While both sides make fair arguments, the art world will be closely watching as the Supreme Court makes its ruling this fall.
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