Written By: Tara Ching
On May 18, 2023, Justice Sotomayor delivered the majority opinion in the colloquial Prince case with a ruling that strengthens copyright protection for original artists.[1] Whether the holding benefits artists is a question that will require more case law to develop.
The Prince case arose between the Andy Warhol Foundation and Lynn Goldsmith, the latter being the original creator of a photograph of Prince, which she licensed to magazine Vanity Fair, who then had artist Andy Warhol use the image as a reference to create a series of silkscreens.[2] Years later, the Warhol Foundation licensed Warhol’s version, Orange Prince, to Condé Nast for publishing in a magazine for which Goldsmith received no payment or credit.[3] The situation posited to create a dramatic ruling on the extent of permissible copying in artistic works, but ultimately came down to a narrow decision on the meaning of a single prong in the test for the fair use exception, related to the limited single licensing problem at issue.[4] The Court sided with Goldsmith, finding that Goldsmith’s and Warhol’s pieces were both put to commercial use via publishment in a magazine. Accordingly, Warhol’s version infringed Goldsmith’s because the purpose of the pieces used were the same under the first prong of the fair use test.[5]
As Justice Sotomayor emphasized, this case protects the rights of the original artist even against more famous names.[6] While this ruling on its face appears to benefit artists, it directly contrasts the policy of encouraging creativity and ingenuity in artists by permitting creators to spring off others’ ideas. By protecting individual rights, Prince restricts artists ability to imitate others which is a foundational practice beginning in every artist’s 101 course. As Justice Kagan stated in her strongly worded dissent, “copying is so deeply rooted in the visual arts” that it has its own indicator incorporated in the titles of many famous imitational pieces.[7]
This inherent artistic practice of copying, lifting, or referencing, is evidenced by appropriation art. Appropriation art is a practice in which artists lift others work and alter it as minimally as possible to make it their own – Warhol’s specialty.[8] It can also be seen in the way social media trends exist by thousands of people creating their version of someone’s popular idea to contribute to the community.[9] On the flip side, protecting artists’ copyright protections may be a preventative move by the Court in anticipation of issues arising with generative AI using original works to generate new images.[10] Because of the balancing nature of the two policies in conflict, artists may both be protected and hindered regardless of which policy prevails.
How much will this decision restrict artists creativity developed through borrowing concepts from others? For now, it seems that copying work in an appropriation art style is still available if the imitator restrains from using the work for the same purpose as the original.
[1] Ariane de Vogue, Supreme Court Rules Against Andy Warhol in Copyright Dispute over Prince Portrait, CNN (May 18, 2023), https://www.cnn.com/2023/05/18/politics/supreme-court-prince-andy-warhol/index.html.
[2] Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 516 (2023).
[3] Id. at 514.
[4] Id. at 550.
[5] Id. at 549.
[6] Id. at 550.
[7] Id. at 590.
[8] Blake Gopnik, Ruling Against Andy Warhol Shouldn’t Hurt Artists. But It Might., N.Y. Times (May 23, 2023), https://www.nytimes.com/2023/05/19/arts/design/warhol-prince-supreme-court-copyright.html.
[9] Annelise Gilbert, Social Media Stars Lock Down IP Rights to Cash in on Virality, Bloomberg L. (Oct 9, 2024), https://news.bloomberglaw.com/ip-law/social-media-stars-lock-down-ip-rights-to-cash-in-on-virality.
[10] Warhol’s “Prince Series” Is Not Fair Use of Copyright, SCOTUS Holds, Jones Day (May 20, 2023), https://www.jonesday.com/en/insights/2023/05/warhol-prince-series-not-copyright-fair-use.
