Pity the Andy Warhol Foundation. Not only did the Foundation have to close its associated authentication board in 2012, but now it has lost what was probably the most high-profile artistic copyright lawsuit of a generation. Although Warhol’s artworks and his brand continue to enjoy high levels of popularity and financial success, the Foundation has been faced with more than a few legal problems, first in relation to lawsuits around the authentication of Warhol works and now in relation to an image Warhol made in 1984 using a photograph of the musician Prince.
This case has been very well documented as it made its way through the courts. We covered it on the blog in 2021 and have included it in our Diploma teaching materials as well. The case was argued before the US Supreme Court in October last year and a decision was rendered this past Thursday. The decision relates to the doctrine of fair use under US law. Even though it’s an American case, its notoriety has meant that the outcome had the potential to affect art practices around the world.
But, in the end, it almost certainly won’t. The Supreme Court’s decision was less of a bang and more of a whimper. It is of course an interesting decision (supported by a 7-2 majority), well-reasoned and convincing… but its implications are ultimately very narrow, far more limited than what most commentators (present author included) had expected at the time of the appeal. There are two reasons for this muted impact.
The first is that the Supreme Court, unlike the lower tribunals, only dealt with “Orange Prince”, one work amongst a series of 16 created by Warhol in 1984 on the basis of an original photograph by Lynn Goldsmith. Orange Prince was noteworthy as the image that had been licensed by the Foundation in 2016 to Condé Nast to appear on the cover of a special edition magazine commemorating the life and death of Prince (see comparison image below, as it appears on p 9 of the judgment). Therefore the Court’s reasoning is limited to, and highly influenced by, the particular context in which that use of the image was made.
The second reason is that the Court was only asked to look at one narrow aspect of fair use under US law, namely the first of the four factors set out at § 107 of the Copyright Act. This factor is set out here, highlighted in bold within the provision:
107. […] the fair use of a copyrighted work… 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 particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Therefore the appeal only related to the “purpose and character of the use” made by the Foundation in licensing the image of Orange Prince to Condé Nast. And because this use was considered nearly identical to the purpose of the original photograph (licensing to a magazine), and was also of a highly “commercial nature” (part of the consideration under this factor), it very much coloured the Court’s decision. Despite what some may have expected, this was not a comprehensive treatise on fair use and artistic practice – for that, see the dissent by Justice Kagan (which is, by the way, one of the strangest judicial opinions I’ve ever read). The majority decision was instead far more circumscribed.
The Foundation had argued that Warhol’s work had created a “new meaning, new idea, new expression”, thus constituting a “transformative use”, terms frequently repeated in US copyright cases that stem from the Supreme Court’s important 1994 decision of Campbell v. Acuff-Rose Music. But the Court here said that this was not enough on its own to tilt the first factor towards a finding of fair use. Instead, the focus should be on whether the allegedly infringing use has a “further purpose or different character” as compared with the use of the original work. In this case, those uses were vastly similar (in fact, practically identical). As the Court wrote: “the purpose of the image is substantially the same as that of Goldsmith’s photograph. Both are portraits of Prince used in magazines to illustrate stories about Prince” (at pp 22-23). The additional fact that the allegedly infringing use was highly commercial in nature (the Foundation had charged Condé Nast $10,000 for the cover image licence) allowed the Court to hold that the first factor in this case clearly weighed against fair use.
From my reading, it does not appear as though anything in the majority’s judgment could be used to seriously question accepted fair use cases of the past where a different purpose between two works was evident. This seems to be affirmed by one of the judges in the majority, Justice Gorsuch, who wrote in his concurring opinion that: “If, for example, the Foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or for a for-profit book commenting on 20th century art, the purpose and character of that use might well point to fair use. But those cases are not this case.” (at p 6 of concurring opinion)
While there may remain lurking within the majority’s decision passages that could come to be repeated and celebrated in the years to come, for the moment the effect seems highly restricted. The analysis was so fact specific that it would be difficult to apply it beyond situations involving artists commercially licensing the use of images that include underlying works by other artists, situations which are exceedingly rare. And in any event, the case is not conclusive as to fair use, as three other factors must inevitably be added to the analysis. The court said nothing about the general practice of Warhol himself or other artists like him.
So if you’re an artist appropriating the works of others – and you’re in the US – you may want to consider getting out of the licensing business, if indeed you’re in it at all. But this would apply only to a sliver of the artistic community – and perhaps only to the output of certain famous artists like Warhol (and, by extension, their licensing bodies). Otherwise, there is precious little that can be generalized from the decision. An artist creating a work that incorporates an underlying work (such as in a collage or mashup) may still qualify for fair use, provided the intended use is substantially different from that of the underlying work and there is no overriding commercial intent, and indeed taking into account the three other factors.
Without wanting to disappoint the art law afficionados, it is difficult to see how this decision will have much of an impact beyond the dispute at hand. I could be wrong. But from an initial reading, that’s how it appears.