The U.S. Supreme Court, in a decision with potentially far-reaching copyright consequences, has limited the scope for the reuse of art in new works. The judges ruled that the artist Andy Warhol, who died in 1987, had infringed the copyrights of a photographer with a picture of the musician Prince. Warhol's portrait was based on her photograph taken a few years earlier.
In the court case, the Andy Warhol Foundation referred 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 copyrighted works, no permission from the author is required if an independent new work of art is created.
Nothing "fundamentally new" created
In Thursday's ruling, however, the majority of the Supreme Court agreed that Warhol had not created anything "fundamentally different and new" with his image. His portrait, as well as the photo of the photographer Lynn Goldsmith, had commercial use as its primary goal. This would remove the "fair use" protection. Warhol had proceeded no differently than, for example, a musician who incorporates music by another artist into his song.
A decision in favor of Warhol in this case would undermine the protection of copyrights, warned Judge Sonia Sotomayor, the author of the ruling. This 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 had created a new work with his alienation because Prince appeared more vulnerable in the photo than in his picture.
Goldsmith had taken the photo of Prince in 1981 on behalf of "Newsweek" magazine, Warhol's picture was published in 1984 in the magazine "Vanity Fair" to an article about Prince. Goldsmith only became aware of this after "Vanity Fair" reprinted Warhol's picture in a commemorative edition after Prince's death. The Warhol Foundation received money for it, but the photographer did not. Warhol made a total of 16 pictures based on the photo. The case was about only 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 "stifle any kind of creativity," she countered. The decision will hinder the creation of new art, music and literature. "It will make our world poorer." The majority had treated Warhol like an "Instagram filter". Presiding Judge John Roberts joined Kagan.
The majority countered such concerns in the ruling. 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 on Western civilization." In the decision, which was provided with many illustrations, she emphasized a difference to other works by Warhol, such as the famous illustrations of the Campbells soup cans. Although the trademark's protected logo is depicted there, the purpose is different. If the company uses it, it is for advertising. In Warhol's case, it was an artistic commentary on consumerism.