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Warhol Decision May Lead To Copyright Licensing Spike
By Jonathon Hance and Drew Taggart ( May 22 , 2023 , 4:59 PM EDT )
Last week , in an opinion that purports to be narrow but will have sweeping implications , the U . S . Supreme Court ruled in Andy Warhol Foundation for Visual Arts Inc . v . Lynn Goldsmith that Warhol ' s well-known " Orange Prince " illustration is not a transformative fair use of Goldsmith ' s photograph of the late musician Prince .[ 1 ]
Discounting the new expression and meaning that Warhol added to the photograph through his famous silk-screening process , the Supreme Court majority suggested that Warhol ' s contributions were " modest alterations " and focused instead on the commercial use of the allegedly infringing work at issue .[ 2 ]
Jonathon Hance
Because the Andy Warhol Foundation and Goldsmith both licensed their respective works to magazines , Warhol ' s " Orange Prince " was not transformative , and the foundation may be liable for copyright infringement .
Now , to determine whether a work is transformative as opposed to an infringing derivative work , artists must question — potentially far in advance — whether the new work will share substantially the same commercial purpose as the original work . Rather than prognosticate , artists may be well-served by securing a license to the original work just in case .
Drew Taggart
Writing in dissent , Justice Elena Kagan called Warhol " the avatar of transformative copying " — an apt moniker .[ 3 ] His illustrations of soup cans , soap-pad boxes , Mao Zedong , Liz Taylor , Marilyn Monroe and — at issue here — Prince , all stem from photographs of those subjects .
Warhol altered — dare we say , transformed — these images using a laborious and complicated silkscreening process , which he perfected , to create these works that appear in every major art history textbook .
But critically , that did not matter . Are his Prince works different from the original photograph ? All those offering testimony in this case answered yes . To the majority , "[ b ] oth are portraits of Prince used in magazines to illustrate stories about Prince " — and that ' s what matters .[ 4 ]
Unlike Warhol ' s soup cans , which are transformative because they illustrate consumerism and the soup cans themselves advertised soup , " Orange Prince " was used in the same way as the base photograph in