U.S. Supreme Court mulls line between art and theft in Warhol case

By Blake Brittain

WASHINGTON (Reuters) – The U.S. Supreme Court is set to ponder in a case centering on paintings by the late artist Andy Warhol a question as philosophical as it is legal: what is the line between art and copyright theft when artwork is inspired by other material?

The justices on Wednesday will hear arguments in a copyright dispute between Warhol’s estate and celebrity photographer Lynn Goldsmith over his paintings based on a 1981 photograph she took of rock star Prince.

The case centers on how courts decide when an artist makes “fair use” of another’s work under copyright law. The dispute over the legal boundary between inspiration and misuse has drawn broad interest for its implications for artists.

Warhol, who died in 1987, was a central figure in the pop art movement that emerged in the 1950s, known for his whimsical style and bold use of colors. He often created silkscreen print paintings and other works inspired by photos of famous subjects including actresses Marilyn Monroe and Elizabeth Taylor, Britain’s Queen Elizabeth, Chinese leader Mao Zedong, boxer Muhammad Ali, rocker Debbie Harry and commercial products including Campbell Soup (NYSE:) cans.

Goldsmith photographed Prince for Newsweek magazine in 1981. Warhol made 14 silkscreen prints and two pencil illustrations based on one of Goldsmith’s Prince photos.

Goldsmith, 74, has said she learned of Warhol’s works only after Prince’s 2016 death. Goldsmith countersued the Andy Warhol Foundation for copyright infringement in 2017 after it asked a Manhattan federal court to rule that his works did not violate her rights. The Supreme Court will hear arguments in the estate’s appeal of a lower court’s decision favoring Goldsmith.

Copyright law sometimes allows for the fair use of copyrighted works without the creator’s permission. A key factor courts consider in determining fair use is whether it has a “transformative” purpose such as parody, education or criticism.

The Supreme Court has not ruled on fair use in art since 1994, when it found that rap group 2 Live Crew’s parody of singer Roy Orbison’s “Oh, Pretty Woman” made fair use of the 1960s song. But the court’s current 6-3 conservative majority has shown little reluctance in overturning precedents.

The high court’s take on the case is “very hard to predict,” said Harvard Law School professor Rebecca Tushnet, who wrote a brief supporting Warhol with other copyright scholars.

Megan Noh, who heads the art law practice at the law firm Pryor Cashman, said she hopes the Supreme Court will clarify how courts determine when a work is transformative and how much weight this should receive compared to other considerations.

‘LARGER THAN LIFE’

A federal judge found Warhol’s works were protected by the fair use doctrine, having transformed the “vulnerable” musician depicted in Goldsmith’s work into an “iconic, larger-than-life figure.”

In reversing that ruling last year, the Manhattan-based 2nd U.S. Circuit Court of Appeals said judges should not “assume the role of art critic and seek to ascertain the intent behind or meaning of the works” but instead should decide whether the new work has a “fundamentally different and new artistic purpose and character” that “stands apart from the ‘raw material’ used to create it.”

The 2nd Circuit decided Warhol’s paintings were “much closer to presenting the same work in a different form,” more similar to a “derivative” work like an art reproduction than a transformative one.

The Supreme Court’s eventual decision could have broad or narrow implications for fair use depending on the ruling, Tushnet said.

“It’s hard to imagine an opinion that says, ‘That’s right, we don’t consider meaning, so parody is not fair use,'” Tushnet said. “On the other hand, you can imagine an opinion that says, ‘Well, the criticism has to be really clear’ – which would be a threat to parodists, but the court might not see it that way.”

“That’s the worrisome scenario for fair use – that if the judge doesn’t ‘get it,’ it’s not going to be fair use,” Tushnet added.

The Warhol estate told the Supreme Court the 2nd Circuit’s decision “casts a cloud of legal uncertainty over an entire genre of visual art, including canonical works by Andy Warhol and countless other artists.”

The estates of famed pop artists Robert Rauschenberg and Roy Lichtenstein, joined by the Brooklyn Museum, backed the foundation, telling the justices in a brief that the 2nd Circuit decision would “impose a deep chill on artistic progress, as creative appropriation of existing images has been a staple of artistic development for centuries.”

Fan fiction writers, documentary filmmakers and intellectual property professors also have supported the foundation.

Goldsmith’s lawyers told the Supreme Court that a ruling favoring the foundation would “transform copyright law into all copying, no right.”

President Joe Biden’s administration has backed Goldsmith, as have trade groups for the recording industry, actors and publishers.

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