Photographer Wins Her Case Against Andy Warhol

The Supreme Court has ruled against the late Andy Warhol in a case involving portraits he made of Prince back in the 1980s. The copyright decision split along unusual lines, with Sonia Sotomayor writing the majority opinion and Elena Kagan the dissent. The majority ruled that Warhol, who died in 1987, based his portraits on a photograph of Prince made by celebrity photog Lynn Goldsmith without giving her proper credit, reports the Wall Street Journal. “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists,” Sotomayor wrote, per the AP, in an opinion joined by Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

“To hold otherwise would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals,” Sotomayor wrote. “As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original, sell it to an outlet to accompany a story about the subject, and claim transformative use.” But Kagan saw things differently, saying that artists have right under the principle of "fair use" to create a new piece of art—one that is indeed "transformative" and not a mere copy—based on the original.

Warhol passed that test, she argued. “Both Congress and the courts have long recognized that an overly stringent copyright regime actually stifles creativity by preventing artists from building on the works of others,” Kagan wrote in a dissent joined by Chief Justice John Roberts, per CNN. “Artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others. The reason the case was in the courts now is that Vanity Fair magazine published one of the Warhol Prince portraits after the entertainer died in 2016. The same magazine had licensed Goldsmith's original photo in 1984 for the Warhol work. (More Andy Warhol stories.)