Dhe US Supreme Court ruled in a Decision with potentially far-reaching copyright consequences limited the scope for reusing art in new works. The judges ruled that artist Andy Warhol, who died in 1987, had infringed a photographer’s copyright with a picture of musician Prince. Warhol’s portrait was based on her photograph taken a few years earlier.
The Andy Warhol Foundation referred in the court case to the “fair use” doctrine, which allows the reuse of a work of art or its elements in the creation of new works. The idea here is that even in the case of works protected by copyright, the author’s permission is not required if a new, independent work of art is created.
Nothing “fundamentally new” created
In Thursday’s verdict, however, the majority of the Supreme Court followed the view that Warhol had not created anything “fundamentally different and new” with his picture. Like the photo by photographer Lynn Goldsmith, his portrait had commercial use as its primary goal. This removes the “fair use” protection. Warhol proceeded in the same way as, for example, a musician who integrates music by another artist into his song.
A decision in favor of Warhol in this case would undermine copyright protections, warned Judge Sonia Sotomayor, author of the ruling. Because that would open the way to copying photos with minor changes and selling them as your own work, she argued. In the first instance, a district court argued, among other things, that Warhol created a new work with his alienation because Prince appeared more vulnerable in the photo than in his picture.
Goldsmith took the photo of Prince in 1981 for Newsweek magazine, Warhol’s picture was published in Vanity Fair magazine in 1984 for an article about Prince. Goldsmith only became aware of it after Vanity Fair reprinted Warhol’s picture in a commemorative edition after Prince’s death. The Warhol Foundation got money for it, but the photographer didn’t. Warhol made a total of 16 paintings based on the photo. The case was about just one of them – “Orange Prince”.
Of the nine members of the Supreme Court, seven followed the judge’s reasoning. Sotomayor’s colleague Elena Kagan strongly disagreed: the verdict would “suffocate any kind of creativity,” she countered. The decision will hamper the creation of new art, music and literature. “It will make our world poorer.” The majority treated Warhol like an “Instagram filter”. Presiding Judge John Roberts aligned himself with Kagan.
The majority opposed such concerns in the verdict. It will not impoverish our world if the Warhol Foundation gives the photographer a portion of the proceeds from the use of her copyrighted work, Sotomayor wrote. The decision will also not “turn off the light of western civilization”. In the heavily illustrated decision, she emphasized a difference from other works by Warhol, such as the famous illustrations of Campbell’s soup cans. The protected logo of the brand is shown there – but the purpose is different. If the company uses it, it is for advertising. With Warhol it was an artistic commentary on consumerism.
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