Many years ago, famed artist Andy Warhol created a series of silk-screen portraits of rock star, Prince, based upon a photo taken by photographer, Lynn Goldsmith. Upon Prince’s death, one of Warhol’s portraits was licensed by his foundation to media giant, Condé Nast, who was publishing a special magazine issue about the legend. Upon seeing the issue, Goldsmith felt she was due payment for use of the portrait because it was based upon her work, and recently the Supreme Court agreed.

The issue in the case was whether Warhol’s work was “transformative” of the original photograph, such that the new work could be considered a stand-alone, fair use not warranting compensation to the original photographer. The Supreme Court held that it was not, and that the Warhol portrait was simply a “commercial substitute” for the Goldsmith photo, used for a substantially similar purpose.

Two factors suggest that the opinion was not completely determinative of the issue of artistic transformation. First, the decision was made in a case-specific manner, leaving open the possibility that similar works which seek to transform original pieces may still be considered fair use if the intended use differs significantly enough from the original. And second, the dissent in the case suggested that the Court did not give enough weight to Warhol’s creative process and, therefore, lacked an understanding of why the work was, in fact, transformative.

For now, artists working with existing images and works should be cautious to put proper licensing agreements in place before allowing derivative works to be placed in commerce. If you have questions about the fair use doctrine as it applies to art or otherwise, please contact us at 246.477.6300.