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The Courts United States

Supreme Court Rules Andy Warhol's Prince Art is Copyright Infringement (petapixel.com) 68

The United States Supreme Court has released its opinion on The Andy Warhol Foundation v. Goldsmith case, finding in favor of Lynn Goldsmith and stating that Warhol's use of her photo was not fair use. From a report: For those unfamiliar, the Warhol v. Goldsmith case has been ongoing for several years and involves photographer Lynn Goldsmith's photo of Prince and Andy Warhol's use of that photo which his Foundation argues was fair use. The details of the case to this point can be read in prior coverage, but in summary, Goldsmith had been victorious in the most recent court's decision leading up to this point. The Andy Warhol Foundation had appealed the decision to the Supreme Court, who has affirmed the lower court's decision and sealed Goldsmith's win.

In an 87-page [PDF], seven-to-two opinion written by Justice Sotomayor, the Supreme Court has ruled that Warhol's use of Goldsmith's Prince photo was not transformative enough to warrant fair use and was instead a violation of her copyright. Justices Roberts and Kagan dissented. "Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor," the court holds. "The 'purpose and character' of Andy Warhol Foundation's (AWF) use of Goldsmith's photograph in commercially licensing Orange Prince to Conde Nast does not favor AWF's fair use defense to copyright infringement."

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Supreme Court Rules Andy Warhol's Prince Art is Copyright Infringement

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  • Marilyn Monroe should've sued him too.

    And Campbell's Soup.

    • I don't know how Marilyn would have felt about it, but I'm 100% sure that Campbell's soup enjoyed the free advertising [campbellsoupcompany.com]. Warhol may have been a weird character, but he was never disrespectful to their soup can.

      • by Tablizer ( 95088 )

        If it can* be argued the soup cans were a political commentary on mass consumption, then Campbell's may not have a case for getting royalties. McD is often used in political art to represent mass consumption and consumerism gone wrong.

        * No pun intended

    • I don't know the history of those works. In this case it was a commissioned work where the commissioner at that time licensed the photo, but then later the Warhol foundation decided to use the work without a licence (Andy Warhol died in 1987).

  • There are a number of people who have found their works used by Andy Warhol, especially comic book artists, where Warhol essentially reproduced the same drawing. They complain they got paid almost nothing for the original and Warhol's copy sells for millions of dollars. This tells you a lot about how intellectual property is protected for the wealthy and powerful, but not for things created by people of lesser status/power/wealth. If the photo was not of a major celebrity and taken by a professional photogr
    • Re: (Score:3, Informative)

      by rgmoore ( 133276 )

      It's a minor point, but you're probably thinking of Roy Lichtenstein, not Andy Warhol, when it comes to reproduction of comic book art. He's the one who's famous for creating massive blow-ups of comic book panels, complete with Ben-Day dots.

  • Like most surpreme court decisions, this is just a group of skillful lawyers creating a legal argument to support their personal opinion. Its mostly pretense that these decisions are based on the law, rather the law is based on the preferred decision. After all, lawyers are trained to make legal arguments that serve their clients interest. Why would that change when they are their own client?
  • What law could be settled here? It's really just a subjective decision about how much originality must present, and the Supreme Court's subjective view on that is no better than that of a lower court or a jury. There is simply no way to define an objective criteria for this by spelling it out in words.
  • info (Score:5, Informative)

    by groobly ( 6155920 ) on Friday May 19, 2023 @12:44PM (#63535227)

    Y'all don't seem to understand what this ruling is about. Warhol paid the artist to use her picture. That implies a license to make a work of art using the picture. The work of art included multiple versions of the image. Then Warhol sold the right to use it to a magazine, which did NOT use the entire work of art, but only one of the multiple variations of the portrait, and unlike Warhol gave not credit or money to the photographer. So ultimately it is like taking the original photograph, and just applying some photoshop hacks to it, not putting a picture of Warhol's painting into the magazine.

    Scotus got it right this time. This is not a decision about art, but about commerce.

  • Fair use is an abominable doctrine because you cannot know ahead of time whether a particular expression is legal or not. It depends on the artistic opinion of whatever judges it ends up in front of.

    FWIW, I'm totally unfamiliar with this case, and I think that Warhol's painting of a can of tomato soup was not particularly transformative. But I also think it was a legitimate "artistic" expression. (I'm not so sure about his signing commercially produced cans of tomato soup.)

    It your feeling is "you're not

    • Fair use is an abominable doctrine because you cannot know ahead of time whether a particular expression is legal or not.

      No. There are clear earmarks written into the law for what defines fair use.

      You could argue that every law is "an abominable doctrine" because you can always find edge cases, and you can always find a lawyer (if you have enough money) to argue the exact wording of the law, but fair use is really no more arguable than any other law, and a lot less ambiguous than some.

      • by HiThere ( 15173 )

        So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source (and rarely from any source).

        • So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source (and rarely from any source).

          From the copyright office:

          107. Limitations on exclusive rights: Fair use
          Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particul

          • by HiThere ( 15173 )

            You may find that clear, but I sure don't. And I believe courts have often made different decisions on the same use. Listing criteria doesn't tell you where the line is drawn.

            • You may find that clear, but I sure don't. And I believe courts have often made different decisions on the same use.

              No more so than pretty much any other law. When you get down into the weeds, you can always find edge cases.

        • So what ARE those "clear earmarks"? You may know, but I've never encountered a description from a trustworthy source
          Why not just read the law?

          https://www.copyright.gov/titl... [copyright.gov]

    • I think you are confusing fair use. Fair use applies to things like taking a quote out of a story. Making a derivative work of art is not fair use. I am not a lawyer either, but I think the issue here is whether this was a derivative work. Thus the issue is whether Wharhol's work transformed the image or was merely a derivative of it.
      • Given that Warhol paid Goldsmith for the work he did sell, it's pretty clear he thought it was derivative.

  • Should AP go back and get paid [columbia.edu] yet?
  • Getting between a wealthy person and a dollar.

  • The Warhol estate should sue Trump for copyright infringement on Andy's hair.

  • This decision sounds directly applicable to the AI art generation programs trained on artists' work.

  • which seeks to maximize it's profits on art of the dead artist. it shouldn't even be able to do that in the first place.

    this case tells you a lot about what is wrong with the current state of copyright.

  • This will get me Troll points, but Warhol was an overrated piece of shit. EOM.

  • I would have thought that precedent in the decision of 'transformational use' in Prince v. Cariou (different Prince! see, e.g. https://www.theverge.com/2013/... [theverge.com]) would have significant bearing on this case.

    But I searched the SCOTUS doc and ...there's not even a single mention of Cariou? They do nevertheless address whether the "Orange Prince" constituted transformative use, deciding that in this case it really didn't.

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