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The Supreme Court will consider on Wednesday whether the late Andy Warhol infringed a photographer’s copyright when he created a series of screen prints of musician Prince.

The case marks the court’s rare foray into the world of visual arts and has caught the attention of those in the art world who argue that an appeals court ruling against Warhol calls into question the legitimacy of generations of artists who were inspired by pre-existing works. .

Museums, galleries, collectors and experts have also weighed in, asking judges to balance copyright law with the First Amendment in a way that will protect artistic freedom.

At the heart of the matter is the so-called “fair use” doctrine in copyright law which permits unlicensed use of copyrighted works in certain circumstances.

In this case, a district court ruled in favor of Warhol, basing its decision on the fact that the two works in question had a different meaning and message. But an appeals court overruled – ruling that new meaning or message is not enough to qualify for fair use.

The Supreme Court must now find the right test.

“Fair Use protects the First Amendment rights of speakers and listeners by ensuring that those whose speech involves dialogue with pre-existing copyrighted works are not prevented from sharing that speech with the world,” said a group of art law professors who support the Andy Warhol Foundation. judges in court documents.

Lawyers for the Warhol Foundation say the artist created the “Prince Series” – a set of portraits that transformed a pre-existing photograph of the musician Prince – in order to comment on “stardom and consumerism”.

They said that in 1984, after Prince became a superstar, Vanity Fair commissioned Warhol to create an image of Prince for an article entitled “Purple Fame”.

At the time, Vanity Fair allowed a black-and-white photo that was taken by Lynn Goldsmith in 1981 when Prince was not well known. Goldsmith’s image was to be used by Warhol as an artist’s reference.

Goldsmith – who specializes in celebrity portraits and makes money on licensing – had originally taken the photo while on assignment for Newsweek. His photos of Mick Jagger, Bruce Springsteen, Bob Dylan and Bob Marley are all part of the court file.

Vanity Fair published the illustration based on her photo – once full-page and once quarter-page – along with an attribution to her. She was unaware that Warhol was the artist her work would reference, but she received a $400 royalty. The license stated “no further rights of use granted”.

Unbeknownst to Goldsmith, Warhol went on to create 15 additional works based on his photography. Sometime after Warhol’s death in 1987, the Warhol Foundation acquired title and copyright to the so-called “Prince series”.

In 2016, after Prince’s death, Conde Nast, the parent company of Vanity Fair, published a tribute using one of Warhol’s Prince series works on the cover. Goldsmith received no credit or attribution for the image. And she received no payment.

Upon learning of the series, Goldsmith acknowledged his work and contacted the Warhol Foundation to inform them of the copyright infringement. She registered her photo with the US Copyright Office.

The Warhol Foundation – believing Goldsmith would press charges – sought a “declaration of non-infringement” from the courts. Goldsmith countersued with a copyright infringement claim.

A district court ruled in favor of the Warhol Foundation, finding that using the photograph without permission and without charge constituted fair use.

Warhol’s work was “transformative”, the court said, because it communicated a different message from Goldsmith’s original work. He felt that the Prince series can “reasonably be seen to have transformed Prince from a vulnerable and uncomfortable person into an iconic, larger-than-life figure”.

The 2nd US Circuit Court of Appeals, however, backtracked and said the use of the images did not necessarily fall under fair use.

The appeals court said the district court erred in assuming the “role of art criticism” and basing its fair use test on the meaning of the artistic work. Instead, the court should have considered the degree of visual similarity between the two works.

By that standard, the court said, the Prince series was not transformative, but rather “substantially similar” to Goldsmith’s photograph and therefore not protected by fair use.

She based her decision on the fact that a secondary work, even if it adds a “new expression” to a source material, can be excluded from fair dealing. The appeals court said that the secondary work’s use of the original source material must have a “fundamentally different and novel” artistic purpose and character “so that the secondary work is distinguishable from the primary material used to create it”. The court pointed out that the primary work need not be barely recognizable in the secondary work, but at a minimum, it must “include something more than the imposition of another artist’s style on the ‘main work’.

The court said the “primary purpose and function” of Goldsmith’s photo and Warhol’s prints are identical because they are “portraits of the same person”.

“Critically, the Prince series retains the essential elements of goldsmith photography without significantly adding or altering those elements,” the court concluded.

Appealing the case on behalf of the Warhol Foundation, attorney Roman Martinez argued that the appeals court had gravely erred in prohibiting courts from considering the meaning of the work as part of a fair dealing analysis.

He warned the court that if it were to adopt the appeals court’s reasoning, it would upend established principles of copyright law and chill creativity and expression “at the heart of the First Amendment.”

According to Martinez, copyright law is designed to foster innovation and sometimes builds on the accomplishments of others.

Martinez pointed out that the doctrine of fair use – “dating back at least to the 19th century” – reflects the recognition that rigid enforcement of copyright law “would stifle the very creativity these laws were meant to foster. “.

He noted that Warhol’s works are currently in collections around the world, including the Museum of Modern Art in New York, the Smithsonian Collection and Tate Modern in London. From 2004 to 2014, Warhol’s auction sales topped $3 billion.

Martinez said Warhol made substantial changes by cropping Goldsmith’s image, resizing it, changing the angle of Prince’s face while changing tones, lighting and detail.

“While Goldsmith portrayed Prince as a vulnerable human, Warhol made significant changes that erased humanity from the image, as a way to comment on society’s conception of celebrities as products, not people,” said Martinez explained and added, “So the Prince series is transformative.

Lisa Blatt, Goldsmith’s lawyer, told the judges a very different story.

“For all creators, the Copyright Act 1976 enshrines a long-standing promise: create innovative works, and copyright law guarantees your right to control if, when and how your works are viewed, distributed, reproduced or adapted,” she wrote.

She said creators and the multibillion-dollar licensing industries “build on this premise.”

She said the Andy Warhol Foundation should have paid Goldsmith’s royalties. Blatt argued that Warhol’s work was nearly identical to Goldsmith’s.

“Fame is not a ticket to trample on other artists’ copyrights,” she said.

The Biden administration backs Goldsmith in this case.

Solicitor General Elizabeth Prelogar noted, for example, that book-to-film adaptations often introduce new meanings or messages, “but this has never been considered independently sufficient justification for unauthorized copying.” . She said Goldsmith’s ability to license her photography and earn fees was “undermined” by the Warhol Foundation.

The Art Institute of Chicago and other museums told the court that the appeals court decision created uncertainty not only for the artworks themselves, but also for the market for copies of works created by the museum through catalogs, documentaries and websites.

The museums’ lawyers also noted that the lower court’s opinion “failed to take into account” long-standing artistic traditions of using elements of pre-existing works in new works and asked the Supreme Court to review the decision of the Court of Appeal.

In the Baroque era, for example, Giovanni Panini painted modern Rome (depicted in court documents) depicting a gallery displaying famous works of art. Included are copies of pre-existing works, including Michelangelo’s Moses, Gian Lorenzo Bernini’s Statutes of Constantine, David, Apollo and Daphne, and his Fountains in Piazza Navona. Contemporary artists also continue to build on pre-existing works of art, museums have argued. Street artist Banksy, for example, painted a piece, “Girl with a Pierced Eardrum” on a building in Bristol. It was in reference to Johannes Vermeer’s masterpiece, “The Girl with the Pearl Earring” from 1665.

“Not all of these works would be considered transformative under Second’s circuit approach,” the museums argued.