The nine justices of the US Supreme Court on Wednesday assumed the role of art critics as they debated whether a photographer should be compensated for a picture she took of Prince that was used in a work by Andy Warhol.
Lighter than most court cases, the arguments were sprinkled with eclectic references to pop culture, ranging from hit TV show Mork & Mindy to hip-hop group 2 Live Crew to Stanley Kubrick’s horror film The Shining “ were enough.
Judge Clarence Thomas at one point willingly admitted he was a fan of Prince in the 1980s, while Chief Justice John Roberts showed a familiarity with Dutch abstract artist Piet Mondrian.
The Andy Warhol Foundation for the Visual Arts v. Goldsmith case could have far-reaching implications for US copyright law and the art world.
“The stakes for artistic expression are high in this case,” said Roman Martinez, an attorney for the foundation, which was established after Warhol’s death in 1987.
“Artists, museums, galleries and collectors would make it illegal to display, sell or even possess any significant amount of work,” Martinez said. “It would also hamper the creation of new art.”
The case comes from a black and white photograph taken of Prince in 1981 by famed photographer Lynn Goldsmith.
In 1984, when Prince’s Purple Rain album was launching, Vanity Fair asked Warhol to create an image to accompany a story about the musician in the magazine.
Warhol used one of Goldsmith’s photographs to silkscreen a purple-faced Prince in the familiar colorful style the artist made famous with his portraits of Marilyn Monroe.
Goldsmith received credit and received $400 for one-time use rights.
After Prince’s death in 2016, the foundation licensed another image of the musician, made by Warhol from the Goldsmith photo, to Vanity Fair editor Conde Nast.
Conde Nast paid the Foundation a license fee of $10,250.
Goldsmith did not receive anything, claiming that her copyright on the original photo was infringed.
– ‘At the mercy of imitators’ –
The foundation argued in court that Warhol’s work was “transformative” – ??an original piece imbued with a new meaning or message – and allowed under the so-called “fair use” doctrine in copyright law.
Lisa Blatt, an attorney for Goldsmith, disagreed.
“Warhol got the picture in 1984 because Miss Goldsmith was paid and credited,” Blatt said.
The foundation, she said, claims that “Warhol is a creative genius who infused the art of others with his own distinctive style.
“But[Steven]Spielberg did the same for movies and Jimi Hendrix did the same for music,” Blatt said. “These giants still needed licenses.”
The foundation argues that “adding new meaning is reason enough to copy for free,” she said. “But that test would decimate the art of photography by destroying the incentive to create the art in the first place.
“Copyrights will be at the mercy of imitators.”
Several judges seemed amused at being cast in the role of art critics.
“How is a court supposed to determine the purpose or meaning, message or meaning of a work of art, such as a photograph or a painting,” Judge Samuel Alito asked. “There can be a lot of argument as to what the meaning of the message is.
“Do you appoint art critics as experts?”
“I think you could just look at the two works and, as a judge, find out what you think,” Martinez replied.
The foundation’s attorney added that a ruling in Goldsmith’s favor “would have dramatic repercussions, not just for the Prince series, but for all types of modern art works that incorporate pre-existing images.”
The Supreme Court heard the case after two lower courts issued separate decisions – one in favor of the foundation, the other in favor of Goldsmith.
The judges will render their verdict by June 30.