It’s (Purple) Raining On the Copyright World Today

The Controversy began in 1984 when Vanity Fair licensed a photograph of Prince to be used as a reference image for Andy Warhol to create a piece of art.¹ In connection with that license, the photographer, Lynn Goldsmith, was compensated and credited.² The resulting work by Warhol, which was featured in Vanity Fair, was a purple silk-screen artwork of the Purple Rain singer.³

However, unknown to Goldsmith and unasked by Vanity Fair, Warhol then went on to create a colorful collection of illustrations, known as the Prince Series, using the same photograph.⁴ In 2016, Vanity Fair used the “Orange Prince”illustration from the collection (owned by the Andy Warhol Foundation) for its commemorative edition after Prince’s death.⁵ But this time, Goldsmith’s original photograph was not licensed, and neither was she credited.⁶

Goldsmith said only One of Us has the copyright to this photograph and it is neither Warhol nor the Foundation.Goldsmith said she believed this was copyright infringement, so the Foundation sued for “a declaratory judgment of noninfringement or, in the alternative, fair use.”⁷ Goldsmith then began suit for infringement. The lower courts held that Warhol sufficiently transformed Goldsmith’s photograph through his colorful silk-screen rendition under fair use, and that therefore neither Warhol nor the Foundation has infringed upon Goldsmith’s copyright.⁸

Goldsmith appealed, and the case came knocking on the Supreme Court’s door in 2022.⁹

Copyright protects original works of authorship. The owner of a copyright holds the right to exclude others from use, but also holds the right to transfer it to others and to allow use of it. Fair use is a defense to copyright infringement claims “that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”¹⁰ In determining a matter of fair use, the following factors are considered: (a) the purpose and character of the use; (b) the nature of the copyrighted work; (c) the amount and substantiality of portion used in relation to thecopyrighted work as a whole; and (d) the effect on potential market for or value of the copyrighted work.¹¹

In May 2023, the Supreme Court focused on how transformative Orange Prince was from the original photograph, and “whether the material has been used to help create something entirely new or merely copied verbatim into another work.”¹² The Court sang a different tune from Nothing Compares 2 U when comparing Orange Prince to the photograph, and held that Warhol’s work “serve[d] the same commercial purpose as Goldsmith’s original photo” whichwas “to license an image for use in a magazine.”¹³ Overturning the lower court’s ruling, the Court held that Warhol shouldnot have used Goldsmith’s photograph, and that the Foundation should not have licensed Orange Prince for Vanity Fair to use in 2016, without paying Goldsmith.¹⁴

Justice Sonia Sotomayor stated that “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.” Justice Elena Kagan fired back in the dissent saying that “an overlystringent copyright regime actually stifles creativity by preventing artists from building on the works of others.”¹⁵Kagan said that the Prince Series artworks and the photograph do not display the same aesthetic attributes, with the Prince Series work featuring a more dramatic and transformative take on Prince.¹⁶ Kagan wrote that “creative progress unfolds through use and reuse, framing, and reframing: One work builds on what has gone before; and later works build on that one.”¹⁷

Corners of the music industry are applauding the Court for its ruling here, calling it a “thoughtful” decision” by notundercutting creator rights under the Copyright Act.¹⁸ Others have said this ruling appears to be “equitable” since music publishing copyrights have historically facilitated the payment of royalties or licensing fees to the owner of a music composition when its lyrics or chords are used in some way by another.¹⁹ Still others, though, are concerned about what this means for artists who may now believe that they need to license a work out of an overabundance of caution, but who won’t be able to pay the license fee to do so.

Copyright law exists to promote the progress of science and the useful arts, while also giving authors the incentive to produce works that will benefit the public. When intellectual property rights are too expansive, an information monopoly can be created that could broadly stifle creativity and therefore harm society in the process. The original photograph of Prince by Goldsmith turned into the focal point of a Supreme Court decision that is sure to reverberate through the copyright world of music and the arts for generations.

¹ https://deadline.com/2021/03/andy-warhol-silkscreens-of-rocker-prince-1234723152/

² Id.

³ https://archive.vanityfair.com/article/1984/11/purple-fame

⁴ https://www.wealthmanagement.com/estate-planning/warhol-foundation-loses-us-supreme-court-copyright-case

⁵ https://www.cnn.com/2023/05/18/politics/supreme-court-prince-andy-warhol/index.html

⁶ Id.

⁷ https://www.wealthmanagement.com/estate-planning/warhol-foundation-loses-us-supreme-court-copyright-case

⁸ https://www.nytimes.com/2022/03/28/us/politics/supreme-court-andy-warhol-prince.html

⁹ Id.

¹⁰ https://www.copyright.gov/fair-use/

¹¹ Id.

¹² https://www.wealthmanagement.com/estate-planning/warhol-foundation-loses-us-supreme-court-copyright-case