The Andy Warhol Foundation in New York is lobbying the Supreme Court to review a copyright infringement case involving a 1981 photograph of Prince by Lynn Goldsmith and a 1984 series of paintings by the Pop artist based on it.
In 2017, the Warhol Foundation sued Goldsmith, seeking a declaration from the court Warhol had not committed infringement with his “Prince Series,” which was based on photographs she took while on assignment for Newsweek. While the Southern District Court of New York ruled in favor of the Warhol Foundation in 2019, the 2nd Circuit Court of Appeals sided with Goldsmith earlier this year because the photographer’s work was still the “recognizable foundation” for Warhol’s paintings. The appeals court sent the case back to a lower court.
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In a petition filed on Thursday, the Warhol Foundation’s legal team argued that the Supreme Court should hear the case because it “casts a cloud of legal uncertainty over an entire genre of visual art, including canonical works by Andy Warhol and countless other artists.” The foundation went on to argue that the appeals court’s decision “will have drastic and harmful consequences for free expression,” and that it “chills artistic speech.”
At stake in the case is what constitutes fair use—a notoriously thorny subject when it comes to art that involves the appropriation of ready-made material. Jeff Koons, Richard Prince, and others have faced lawsuits of the sort in the past decade that have been carefully watched by many members of the art world.
The appeals court’s decision on the Goldsmith case proved surprising because the judgement rested largely on the Warhol works’ visual qualities, as opposed to conceptual ones. The presiding judge, Gerald Lynch, said that, although Warhol had brightened Goldsmith’s images and rendered their depth more shallow, he had not done so in a “transformative” way.
Roman Martinez, a partner in Latham’s Supreme Court & Appellate Practice, which filed the petition on behalf of the Warhol Foundation, said in a statement, “We hope the Court will recognize that Andy Warhol’s transformative works of art are fully protected by law.”
Correction, 12/13/21, 3:35 p.m.: A previous version of this article stated that Goldsmith sued the Warhol Foundation in 2017. It was the reverse.