Lynn Goldsmith “Pops Off” on Warhol’s Pop Art in Recent SCOTUS Hearing

Emma QuinnNews & Insights

By Emma Quinn

Through photography and other artistic mediums, Lynn Goldsmith has documented American culture since the 1970s.[1] Her work can be seen in museum collections and she has been awarded numerous accolades including a Lucie Award for Achievement in Portraiture.[2] [3] Andy Warhol, the most influential pop-artist in history, created many paintings and prints of recognizable figures in commercial culture that were derived from photographs – often photographs that were not his own.[4]

Goldsmith’s photograph of acclaimed singer-songwriter Prince, which was adapted into a cropped, vibrantly colorized painting by Warhol, is at the center of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case recently argued before the U.S. Supreme Court regarding the scope of “transformative use” under copyright law’s Fair Use Doctrine.[5]

In 1984, Vanity Fair was publishing an article about Prince and sought an illustration to accompany it.[6] The magazine licensed a photo Goldsmith had taken of Prince for use as “artist reference” for the illustration, which was to be published in its November 1984 issue.[7] That artist was Andy Warhol, who produced a pop-art style image of the photograph, which was published alongside the article along with a photo credit to Goldsmith.[8]

Although the agreement between Vanity Fair and Goldsmith only addressed the use of one of Goldsmith’s photographs for the article, Warhol ultimately created sixteen different works derived from Goldsmith’s photograph.[9] In 2016, after Prince’s death, Vanity Fair issued a commemorative magazine, using one of Warhol’s derived works as the cover image.[10] Unlike the 1984 issue, the 2016 issue did not attribute the original photo of Prince to Goldsmith.[11] Following the release of the commemorative magazine, Goldsmith registered the copyright in the Prince photograph and the Andy Warhol Foundation (AWF), the organization representing the intellectual property interests of the late artist,[12] proceeded to seek a declaratory judgment of non-infringement.[13] The AWF prevailed in the district court, but the decision was ultimately reversed by the Second Circuit Court of Appeals.[14] The AWF petitioned for a writ of certiorari to the U.S. Supreme Court, and the Court heard arguments on October 12, 2022. The question for the Supreme Court became whether Warhol’s images were “such a ‘fair’ use of the photograph that Warhol’s successors can license them for commercial use without the permission of (or compensation to) Goldsmith.”[15]

The AWF argued that Warhol’s works based on the photographs of Prince are so transformative—i.e. they “alter[ed] the original [work] with new expression, meaning or message”[16]—that the AWF is not required to request permission from nor compensate Goldsmith for the use of Warhol’s works, even though they were based on her original photograph.[17] The justices challenged this theory using a series of hypotheticals, including whether, under the AWF’s interpretation of the transformative use test, when moviemakers make a movie based on a book, the movie would be considered transformative if it adds “new dialogue, sometimes new plot points, new settings, new characters, [and] new themes,” such that the moviemakers would not have to pay the book’s author.[18]

In response to the AWF’s argument that “[Warhol] imbued other people’s art with his own distinctive style,” Goldsmith’s lawyer, Lisa Blatt, explained that “[Steven] Spielberg did the same for films and Jimi Hendrix for music. Those giants still needed licenses.”[19] Ms. Blatt also faced questions about Section 107 of the Copyright Act, which provides that one factor in determining whether something qualifies as “fair use” is what the purpose and character of that use is, such as if it is “of a commercial nature or is for nonprofit educational purposes.”[20] Ms. Blatt argued that the purpose of Goldsmith’s photograph and Warhol’s rendition “was commercial licensing for publication in magazines in stories about Prince.”[21] Justice Roberts suggested the purpose of Warhol’s work might in fact be different, stating that Warhol’s message was more about “the depersonalization of modern culture and celebrity status” whereas Goldsmith’s purpose was to “show what Prince looks like.”[22]

Even the quietest of the Justices, Justice Clarence Thomas, was engaged in the oral arguments, and lawyers and artists alike eagerly await the Court’s ruling. Academics and artists fear that if courts do not find a way to measure the “meaning and message of art, then art and creativity will be eviscerated” because they will not be adequately protected under copyright law.[23] In an amicus brief in support of Goldsmith, art law and copyright law professor Terry Kogan argued that judges should not act as art critics; instead, the transformative use analysis “should be guided by assessments of objective evidence capable of consistent application by courts.”[24] Copyright law professor Bruce E. Boyden is likewise hopeful that the Supreme Court will give lower courts “much-needed guidance” on analyzing fair use, but expressed concern that the decision may also “eliminate[] the few stable boundaries we have,” in assessing copyright infringement.[25] Although it is unknown how the Court will rule on this case, it is sure to influence artistic developments as derivative works continue to “pop” up in creative industries.


[1] Kanika Talwar, Lynn Goldsmith Releases Lively Book “Music in the 80s, V Magazine (Sept. 27, 2022) https://vmagazine.com/article/lynn-goldsmith-book-music-in-the-80s/.

[2] Id.

[3] Kevin Ames, On Photography: Lynn Goldsmith, 1948-Present, photofocus (Aug. 28, 2022) https://photofocus.com/featured/on-photography-lynn-goldsmith-1948-present/.

[4] Naomi Martin, Andy Warhol Portraits: A Definitive Guide, Artland Magazine, https://magazine.artland.com/andy-warhol-portraits-a-definitive-guide/.

[5] Ronald Mann, Justices to Consider Whether Warhol Image is “Fair Use” of Photograph of Prince, SCOTUSblog (Oct. 9, 2022, 4:50 PM), https://www.scotusblog.com/2022/10/justices-to-consider-whether-warhol-image-is-fair-use-of-photograph-of-prince/.

[6] Clara Cassan, Case Review: Warhol v. Goldsmith, Center for Art Law, https://itsartlaw.org/case-review-warhol-v-goldsmith/.

[7] Id.

[8] Bruce E. Boyden, The Stakes in Andy Warhol Foundation v. Goldsmith, Marquette Univ. L. Sch. Fac. Blog (Oct. 3, 2022), https://law.marquette.edu/facultyblog/2022/10/the-stakes-in-andy-warhol-foundation-v-goldsmith/.

[9] Id.

[10] Id.

[11] Id.

[12] Ronald Mann, Justices Debate Whether Warhol Image is “Fair Use” of Photograph of Prince, SCOTUSblog (Oct. 14, 2022, 9:50 PM), https://www.scotusblog.com/2022/10/justices-debate-whether-warhol-image-is-fair-use-of-photograph-of-prince/.

[13] Boyden, supra note 8.

[14] Id.

[15] Mann, supra note 12.

[16] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569 (1994).

[17] Mann, supra note 12.

[18] Id.

[19] Mark Walsh, The Court of Art Criticism is in Session, SCOTUSblog (Oct. 12, 2022, 7:32 PM), https://www.scotusblog.com/2022/10/the-court-of-art-criticism-is-in-session/.

[20] 17 U.S.C. § 107(1) (1976).

[21] Mann, supra note 12.

[22] Id.

[23] Q&A: With Warhol Foundation v. Goldsmith on the Supreme Court Docket, Amy Adler Discusses Fair Use in Contemporary Art Law, NYU Law News (Aug. 10, 2022), https://www.law.nyu.edu/news/-amy-adler-warhol-goldsmith-art-law#:~:text=Visual%20Art%2C%20Inc.-,v.,portrait%20she%20took%20of%20Prince.

[24] Brief of Professor Terry Kogan as Amicus Curiae in Support of Resp’ts at 1, Aug. 15, 2022, https://www.supremecourt.gov/DocketPDF/21/21-869/233526/20220815153452948_Kogan%20Goldsmith%20Amicus%20MAIN%20E%20FILE%20Aug%2015%2022.pdf.

[25] Boyden, supra note 8.