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The justices took up the Andy Warhol
Foundation's appeal of a lower court ruling that his paintings -
based on a photo of Prince that photographer Lynn Goldsmith had
shot for Newsweek magazine in 1981 - were not protected by the
copyright law doctrine called fair use. This doctrine permits
unlicensed use of copyright-protected works under certain
circumstances.
Goldsmith, 74, countersued Warhol's estate for infringement in
2017 over Warhol's unlicensed paintings of Prince after the
estate asked a Manhattan federal court to find that his works
did not violate her rights. Warhol, who died in 1987, often
based his art on photographs.
Goldsmith, who has said she did not learn about the unlicensed
works until after Prince died in 2016, asked the court to block
Warhol's estate from making further use of her work and for an
unspecified amount of money damages.
A judge ruled that Warhol's works were protected against
Goldsmith's infringement claims by the fair use doctrine,
finding they transformed Goldsmith's portrayal of Prince as a
"vulnerable human being" by depicting him as an "iconic,
larger-than-life figure."
After Goldsmith challenged that decision, the New York-based 2nd
U.S. Circuit Court of Appeals last year found that Warhol's
paintings had not made fair use of the photo, allowing
Goldsmith's case to proceed.
The 2nd Circuit decided that https://www.reuters.com/article/ip-copyright/2nd-circuit-reverses-win-for-andy-warhol-foundation-over-prince-images-idUSL1N2LO2PP
a transformative work must have a "fundamentally different and
new artistic purpose and character," and that Warhol's paintings
were "much closer to presenting the same work in a different
form."
The Andy Warhol Foundation asked the Supreme Court in December
to overturn the 2nd Circuit decision, arguing that it created "a
cloud of legal uncertainty" for an entire genre of art like
Warhol's.
Warhol Foundation attorney Roman Martinez said he welcomed the
high court's decision to hear the case and hopes it will
"recognize that Andy Warhol's transformative works of art are
fully protected by law."
Goldsmith said in a statement provided by one of her lawyers
that she looks forward to continuing her legal fight at the
Supreme Court.
"Five years ago, the Foundation sued me to obtain a ruling that
it could use my photograph without asking my permission or
paying me anything for my work. I fought this suit to protect
not only my own rights, but the rights of all photographers and
visual artists to make a living by licensing their creative work
- and also to decide when, how and even whether to exploit their
creative works or license others to do so," Goldsmith said.
The Supreme Court addressed the issue of copyright fair use last
year in a ruling finding that the use of Oracle Corp software
code by Alphabet Inc's Google in its Android operating system
was protected.
In a 1994 Supreme Court ruling on fair use involving artistic
creation, the justices found that rap group 2 Live Crew's parody
of Roy Orbison's "Oh, Pretty Woman" made fair use of Orbison's
song.
(Reporting by Blake Brittain in Washington; Editing by Will
Dunham and David Bario)
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