The culture of visual sampling and appropriation suffered a setback today as the U.S. Supreme Court ruled against the Andy Warhol Foundation in a much-watched case involving the limitations of copyrights within the fair use doctrine. Digital visual appropriation has attempted to piggyback on allowances used in music sampling within hip-hop and other genres. This ruling counters that movement by reinforcing copyright law when commercial interests are involved.  

Orange Prince and fair use

At issue was a series of silk screens created by Andy Warhol (who died 1987) in which he used a photograph of Prince taken by Lynn Goldsmith. Goldsmith sued the Andy Warhol Foundation for licensing an image called “Orange Prince” to Conde Naste. Goldsmith was unaware of the Warhol silk screens until they appeared in an issue of Vanity Fair (owned by Conde Naste) in 2016.

The court was unimpressed with the Andy Warhol Foundation’s argument that their licensing of images of the Warhol’s silk screens, though based on Goldsmith’s photos, were permitted under the fair use doctrine because they were sufficiently “transformative.” 

The 7 to 2 decision crossed ideological lines within the court in favor of Goldsmith, finding that when the magazine published a photo of Warhol’s work it lost any transformative value and the digital version “share[s] substantially the same purpose, and the use is of a commercial nature.”

“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original.”

Justice Sonia Sotomayor, writing the majority opinion. 

Transformative use

Had the Andy Warhol Foundation sold the physical silk screens this decision would likely never have happened. (Though, it seem that the court ruled against this use too.) It is the mass distribution and easy replication of protected works that remains squarely in the sights of copyright restrictions.

This decision may inform other important legal questions being generated (pun intended) by artificial intelligence. Do A.I. programs have permission to alter, or sample original copyrighted material without written permission? Print, image and music recording publishers seem united in their stance to protect their works from a.i. infringement.

“Today’s Warhol Foundation decision is a massive victory for songwriters and music publishers. This is an important win that prevents an expansion of the fair use defense based on claims of transformative use. It allows songwriters and music publishers to better protect their works from unauthorized uses, something which will continue to be challenged in unprecedented ways in the AI era.”

David Israel, CEO, National Music Publishing Association

Fair use simplified

Smith ensures our clients don’t bump up against copyright issues by being very careful in our image selection and paying for the images that require us to do so. However, when creating digital content for personal social media, educating, informing, or for a non-profit presentations, fair use offers more latitude for creators to appropriate, sample and use the work of others.

The easiest way to understand the difference is to follow the money. You can’t directly profit from another creator’s work without compensating them. It’s that simple.    

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