In a ruling that could have significant implications for the music industry — especially given the advent of artificial intelligence — the Supreme Court has ruled that licensing Andy Warhol artwork depicting Prince, even on a more than 40-year-old copyright Work based on B. a photograph is not transformative enough to represent fair use.
The Supreme Court today confirmed An appeals court ruled in favor of photographer Lynn Goldsmith, who has been in litigation with the Andy Warhol Foundation for the Visual Arts (AWF) for nearly a decade. In short, the latter received $10,000 from licensing to Condé Nast an “orange silkscreen portrait” of Prince created by the late Warhol.
But the artist had made the portrait (and, to take it a step further, 15 other works in a series) using a 1981 photograph as a source Purple Rain Nude photographed and copyrighted by Goldsmith. For her part, Goldsmith had received $400 and credit for the photo, having licensed her shot to allow Warhol to provide the first purple silkscreen portrait for Condé Nast’s “Vanity Fair” in 1984. The agreement was intended as a one-time deal.
However, when Condé Nast approached Warhol’s eponymous foundation to re-license the purple portrait in 2016, she learned about the other artworks in the series and decided to use the separate orange silkscreen portrait. Goldsmith was not compensated for the use, despite owning the photograph from which the artwork was derived, and the longtime photographer is said to have only learned of the unauthorized arrangement after seeing the cover of Prince Tribute magazine seven years ago had.
The Supreme Court (Judges Sotomayor, Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson concurred with the majority view) upheld the earlier ruling in Goldsmith’s favour, noting that while the orange portrait of the prince “brought a new expression to Goldsmith’s photograph… “The first fair use factor still favors,” says the pro.
(The first factor concerns “the purpose and manner of use, including whether such use is commercial in nature or for non-profit educational purposes.”
“The purpose of this usage is still to illustrate a magazine about Prince with a portrait of Prince,” Judge Sotomayor wrote. “Although the purpose could be more accurately described as illustrating a magazine about Prince with a portrait of Prince that depicts Prince slightly differently than Goldsmith’s photograph (but does not critically influence her photograph), that degree of difference is not sufficient given the specific context of use, this is the first factor favoring AWF.
“A different view would potentially authorize a series of commercial copies of photographs to be used for purposes substantially similar to the originals,” the judge continued. “As long as the user somehow represents the subject of the photo differently, they could make minor modifications to the original, sell it to an outlet to accompany a story about the subject, and claim a transformative use.”
Furthermore, expanding “transformative use” to “any use that adds a new expression, meaning, or message…would engulf the copyright owner’s exclusive right to create derivative works,” the majority view clearly showed.
“It will not impoverish our world if AWF Goldsmith has to pay a fraction of the proceeds from the reuse of their copyrighted work,” Judge Sotomayor wrote in the opinion, which made headlines after OpenAI’s CEO acknowledged that creators, including also professionals from the music industry should benefit from AI. “As a reminder, payments like these are primarily an incentive for artists to create original works.”
The RIAA immediately reached out to Digital Music News for comment on the Supreme Court’s “thoughtful” decision — which could have implications for certain non-AI copyright lawsuits involving high-profile industry players.
“We applaud the Supreme Court’s considered and considered decision that claims of ‘transformative use’ cannot undermine the fundamental rights afforded to all authors under copyright law,” said Mitch Glazier, CEO of the RIAA. “Lower courts have misconstrued fair use for too long, and we are grateful that the Supreme Court affirmed the core purposes of copyright law.
“We hope that those who have relied on distorted — and now discredited — claims of ‘transformative use,’ such as those using copyrighted works to train artificial intelligence systems without permission, will reassess their practices in light of this important.” Reconsider judgment,” concluded Glazier.