The Supreme Court said on Monday that it would review a closely watched copyright infringement lawsuit that pits the Andy Warhol Foundation against the photographer Lynn Goldsmith. The Court’s decision could have major implications for “fair use” of copyrighted materials in art.
Few cases related to contemporary art have ever been heard by the Supreme Court.
In 1984, Warhol used a 1981 photograph that Goldsmith had taken of the pop star Prince as the basis for a series of paintings. Goldsmith’s picture of Prince was shot on assignment for Newsweek. On commission for Vanity Fair, Warhol used the photograph as a reference, allegedly without Goldsmith’s knowledge of the project. She claimed decades later that Warhol had committed copyright infringement by using it.
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The Warhol Foundation’s lawsuit has already been considered a major one. Whatever decision the Supreme Court makes on the suit is likely to prove decisive, as it will clarify what constitutes “fair use” for artists who rely on appropriated ready-made images in their practices, a notoriously sticky artistic strategy that has landed figures like Jeff Koons and Richard Prince in court previously.
“We welcome the Supreme Court’s decision to grant review in this case,” Roman Martinez, a lawyer for the firm Latham’s Supreme Court & Appellate Practice, which is representing the Warhol Foundation, said in a statement. “The ‘fair use’ doctrine plays an essential role in protecting free artistic expression and advancing core First Amendment values.”
The case was initiated in 2017 when the Warhol Foundation preemptively sued Goldsmith in New York with the aim of getting a ruling that the Pop artist had not committed copyright infringement with his “Prince Series.” The Southern District Court of New York ruled in the foundation’s favor in 2019.
But Goldsmith appealed the case and registered a legal win in 2021, when the 2nd Circuit Court of Appeals said that said that her photograph was the “recognizable foundation” for the “Prince Series” paintings. Basing his decision on the visual qualities of the Warhol paintings, Judge Gerald Lynch said that Warhol may have changed the look of some parts of Goldsmith’s portrait—the color tones, for example—but that he had not done so in a “transformative” way.
By the end of last year, the Warhol Foundation had begun to seek a Supreme Court review of the case.
The news comes amid a period of heightened interest in Warhol. Netflix recently released a documentary series about the artist, titled The Andy Warhol Diaries, and Christie’s revealed plans last week to auction a $200 million portrait of Marilyn Monroe by him that could become one of the most expensive artworks ever sold.