CONTENT MATTERS: The much watched Supreme Court copyright case between established photographer Lynn Goldsmith and the Andy Warhol Foundation has swung in her favor.
Thursday’s decision was hashed out over the image that Goldsmith took of the late musician Prince that was used for the premise of a silkscreen series by the Pop artist Andy Warhol.
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With a vote of 7-2, the court determined that Warhol’s images could not fall under “fair use” in copyright law. Many creatives in different fields were keeping a close eye on the proceedings. The decision could be seen as a deterrent to artists who conjure up work based on existing material. It is considered a win for those who own copyrighted content that other works are based upon.
Penning the ruling, Justice Sonia Sotomayor wrote that the Warhol works did not have a substantially different commercial purpose from that of the original photo taken by Goldsmith and used by two magazines.
The SCOTUS decision flushed out the premise of the legal battle. In 2016, petitioner Andy Warhol Foundation for the Visual Arts Inc., or (AWF, licensed to Condé Nast for $10,000 an image of “Orange Prince” — an orange silkscreen portrait of the musician Prince created by pop artist Andy Warhol — to appear on the cover of a magazine commemorating Prince.
Orange Prince is one of 16 works now known as the “Prince Series” that Warhol derived from a copyrighted photograph taken in 1981 by Goldsmith, who had been commissioned by Newsweek in 1981 to photograph the then up-and-coming musician named Prince Rogers Nelson for an article. Years later, Goldsmith granted a limited license to Vanity Fair for use of one of her Prince photos as an “artist reference for an illustration.” The terms of the license included that the use would be for “one time” only. Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo to create a purple silkscreen portrait of Prince, which appeared with an article about Prince in Vanity Fair’s November 1984 issue. The magazine credited Goldsmith for the “source photograph” and paid her $400.
After Prince died in 2016, Vanity Fair’s parent company Condé Nast asked AWF about reusing the 1984 Vanity Fair image for a special-edition magazine that would commemorate Prince. When Condé Nast learned about the other Prince Series images, it opted instead to purchase a license from AWF to publish Orange Prince. Goldsmith did not know about the Prince Series until 2016, when she saw Orange Prince on the cover of Condé Nast’s magazine. Goldsmith notified AWF of her belief that it had infringed her copyright. AWF then sued Goldsmith for a declaratory judgment of noninfringement.
En route to an event Thursday night, Goldsmith deferred comment until Friday. She said she had issued this statement earlier Thursday that highlighted how she financially risked everything and what the ruling means for other artists.
“I am thrilled by today’s decision and thankful to the Supreme Court for hearing our side of the story. This is a great day for photographers and other artists who make a living by licensing their art. This legal battle has been a long road at great emotional and financial impact upon me and my family. I felt I had to risk everything we had financially in order to fight in the courts for protection of my rights and those of all in the arts against those who would infringe.’
Her hope is this SCOTUS ruling “is a lesson that people should not shy away from legally standing up for their rights when organizations, foundations or individuals who have greater financial resources which they can use to intimidate with legal costs,” The statement read. “It is easy to overwhelm individual creators who just want to make their work and not go through the emotional and costly legal battle to stand up for their rights. I want to thank the team at Williams & Connolly, especially Lisa Blatt and Tom Hentoff, for sticking with me through the lows and highs, which resulted in a win for a copy-written artist’s work.”
Her achievements include creating the “bio-disk” for Electra Records in 1969, winning a Clio for one of the radio spots she produced, working on the first films of recording artists that were to be used for promotion, and being the youngest woman member ever to be accepted into the Director’s Guild of America. Her photography can be found in museum collections at the Smithsonian National Portrait Gallery, the Museum of Modern Art, the Chicago Museum of Contemporary Photography and the Rock and Roll Hall of Fame, among others.
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