U.S. Supreme Court docket mulls line between artwork and theft in Warhol case By Reuters


© Reuters. FILE PHOTO: An worker poses with 10 screenprints of Marilyn Monroe by Andy Warhol as a part of the exhibition “American Dream: pop to the current” on the British Museum in London, Britain February 10, 2017. REUTERS/Stefan Wermuth/File Picture


By Blake Brittain

WASHINGTON (Reuters) – The U.S. Supreme Court docket is ready to ponder in a case centering on work by the late artist Andy Warhol a query as philosophical as it’s authorized: what’s the line between artwork and copyright theft when art work is impressed by different materials?

The justices on Wednesday will hear arguments in a copyright dispute between Warhol’s property and movie star photographer Lynn Goldsmith over his work based mostly on a 1981 {photograph} she took of rock star Prince.

The case facilities on how courts resolve when an artist makes “truthful use” of one other’s work beneath copyright regulation. The dispute over the authorized boundary between inspiration and misuse has drawn broad curiosity for its implications for artists.

Warhol, who died in 1987, was a central determine within the pop artwork motion that emerged within the Nineteen Fifties, recognized for his whimsical type and daring use of colours. He usually created silkscreen print work and different works impressed by photographs of well-known topics together with actresses Marilyn Monroe and Elizabeth Taylor, Britain’s Queen Elizabeth, Chinese language chief Mao Zedong, boxer Muhammad Ali, rocker Debbie Harry and industrial merchandise together with Campbell Soup (NYSE:) cans.

Goldsmith photographed Prince for Newsweek journal in 1981. Warhol made 14 silkscreen prints and two pencil illustrations based mostly on one among Goldsmith’s Prince photographs.

Goldsmith, 74, has mentioned she discovered of Warhol’s works solely after Prince’s 2016 loss of life. Goldsmith countersued the Andy Warhol Basis for copyright infringement in 2017 after it requested a Manhattan federal court docket to rule that his works didn’t violate her rights. The Supreme Court docket will hear arguments within the property’s enchantment of a decrease court docket’s determination favoring Goldsmith.

Copyright regulation typically permits for the truthful use of copyrighted works with out the creator’s permission. A key issue courts contemplate in figuring out truthful use is whether or not it has a “transformative” objective comparable to parody, schooling or criticism.

The Supreme Court docket has not dominated on truthful use in artwork since 1994, when it discovered that rap group 2 Dwell Crew’s parody of singer Roy Orbison’s “Oh, Fairly Girl” made truthful use of the Sixties tune. However the court docket’s present 6-3 conservative majority has proven little reluctance in overturning precedents.

The excessive court docket’s tackle the case is “very onerous to foretell,” mentioned Harvard Regulation College professor Rebecca Tushnet, who wrote a short supporting Warhol with different copyright students.

Megan Noh, who heads the artwork regulation observe on the regulation agency Pryor Cashman, mentioned she hopes the Supreme Court docket will make clear how courts decide when a piece is transformative and the way a lot weight this could obtain in comparison with different issues.


A federal decide discovered Warhol’s works have been protected by the truthful use doctrine, having reworked the “susceptible” musician depicted in Goldsmith’s work into an “iconic, larger-than-life determine.”

In reversing that ruling final 12 months, the Manhattan-based 2nd U.S. Circuit Court docket of Appeals mentioned judges mustn’t “assume the function of artwork critic and search to determine the intent behind or that means of the works” however as an alternative ought to resolve whether or not the brand new work has a “essentially totally different and new creative objective and character” that “stands aside from the ‘uncooked materials’ used to create it.”

The 2nd Circuit determined Warhol’s work have been “a lot nearer to presenting the identical work in a unique kind,” extra just like a “spinoff” work like an artwork copy than a transformative one.

The Supreme Court docket’s eventual determination may have broad or slender implications for truthful use relying on the ruling, Tushnet mentioned.

“It is onerous to think about an opinion that claims, ‘That is proper, we do not contemplate that means, so parody isn’t truthful use,'” Tushnet mentioned. “Alternatively, you’ll be able to think about an opinion that claims, ‘Effectively, the criticism must be actually clear’ – which might be a menace to parodists, however the court docket may not see it that manner.”

“That is the worrisome situation for truthful use – that if the decide does not ‘get it,’ it isn’t going to be truthful use,” Tushnet added.

The Warhol property informed the Supreme Court docket the 2nd Circuit’s determination “casts a cloud of authorized uncertainty over a complete style of visible artwork, together with canonical works by Andy Warhol and numerous different artists.”

The estates of famed pop artists Robert Rauschenberg and Roy Lichtenstein, joined by the Brooklyn Museum, backed the inspiration, telling the justices in a short that the 2nd Circuit determination would “impose a deep chill on creative progress, as inventive appropriation of present pictures has been a staple of creative growth for hundreds of years.”

Fan fiction writers, documentary filmmakers and mental property professors even have supported the inspiration.

Goldsmith’s attorneys informed the Supreme Court docket {that a} ruling favoring the inspiration would “remodel copyright regulation into all copying, no proper.”

President Joe Biden’s administration has backed Goldsmith, as have commerce teams for the recording trade, actors and publishers.

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