Copyright Dispute Over Warhol's "Prince Series" Makes Its Way To The Supreme Court

• Published date: 16 December 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Ms Caren Decter

The copyright battle over Andy's Warhol's "Prince Series" has made its way up to the Supreme Court. This week, the Andy Warhol Foundation petitioned the Supreme Court to hear its appeal of the Second Circuit's ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021), which held that Warhol's "Prince Series" infringed on Goldsmith's portrait of Prince and was not fair use. (See our prior posts explaining the Second's Circuit's decision here and here.)

The Warhol Foundation argues that the Second Circuit's decision "threatens a sea-change in the law of copyright" because it fundamentally alters the "transformative inquiry", which, in practice, is "virtually always dispositive of the fair use question." According to the Warhol Foundation, the heart of the transformative inquiry-under the Supreme Court's landmark Campbell decision-has always been whether the work "adds something new" by "altering [the source material] with new expression, meaning, or message." The Warhol Foundation argues that the Second Circuit's decision fundamentally alters this test by prohibiting courts from ascertaining whether the follow-on work conveys a different meaning or message from the original, where both pieces are works of art that share a visual resemblance.

Specifically, the Second Circuit held that Warhol's Prince Series did not make a transformative use of Goldsmith's portrait because it "retain[ed] the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements" and Goldsmith's photo "remains the recognizable foundation upon which the Prince Series is built." The imposition of Warhol's "signature style" on Goldsmith's portrait was insufficient as a matter of law. According to the Warhol Foundation, this decision adopts a new test for "transformativeness"-which conflicts...