Andy Warhol, in a file image.
The Supreme Court of the United States on Thursday gave the reason to the photographer Lynn Goldsmith, who began 17 years ago a crusade to recognize that Andy Warhol infringed his copyright by creating a series of serigraphs from an image taken by Goldsmith of the singer Prince. Beyond the dispute itself, the decision can change the rules of the game of artistic creation by posing a new scenario in which starting from a previous work, widespread practice in contemporary art, can lead to legal consequences.
"Goldsmith's original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes derivative works that transform the original," Justice Sonia Sotomayor writes in the majority opinion. Seven justices agreed with that view. The other two showed their opposition. Sotomayor believes that both images "share substantially the same purpose and the use is commercial in nature." Also, that the Warhol foundation "offered no other persuasive justification for the unauthorized use of the photograph."
The person in charge of writing the dissenting opinion has been the liberal Elena Kagan (the president of the high court, the conservative John Roberts, was the other justice aligned with his position). "[The sentence] will stifle creativity of all kinds. It will prevent new art, music and literature. It will frustrate the expression of new ideas and the attainment of new knowledge. It will make our world poorer."
The origin of the dispute dates back to 1981, when Goldsmith photographed for Newsweek Prince, then a rising artist with three notable albums behind him, but not yet the gigantic star of the musical who would end up becoming throughout that decade. Three years later, the American magazine Vanity Fair commissioned a series of serigraphs and two pencil sketches of the singer to Warhol, who had made history in the fifties as part of the pop art movement, based on turning into art images of mass culture, such as a box of Brillo detergent or a can of Campbell's soup. Warhol took the black and white image of Goldsmith and injected it with color, as he had come for decades with characters such as Jackie Kennedy, Mick Jagger or Marilyn Monroe.
Vanity Fair then paid the photographer for the use of some of his work. When Prince died in 2016, the magazine decided to dust off the commission to Warhol (who died in 1987). That's when Goldsmith discovered that the artist had used his work to create other images without his knowledge. So he sued the Andy Warhol Foundation, for having given permission to the publication, without crediting (or compensating) Goldsmith.
Before reaching the Supreme Court, the case registered two contradictory sentences. A federal judge ruled in favor of the foundation, finding that what Warhol did with the source material can be considered "transformative," because, he wrote in the ruling, it turned Goldsmith's portrait into an icon.
A higher court, the New York-based Court of Appeals for the Second Circuit, later ruled in favor of the photographer after reviewing the case in 2021. The magistrates criticized the lower judge who had set himself up as an "art critic" in making his decision.
[Breaking news. Update to be provided shortly.]