“Original works, like those of other photographers, are entitled to copyright protection, even against famous artists”, when the derivative work created is not sufficiently distinguishable from the original: this is the ruling of the US Supreme Court in the case that the photographer Lynn Goldsmith brought against the Andy Warhol Foundation in 2017.
Upon the death of singer Prince in 2016, the famous magazine “Vanity Fair” decided to celebrate the artist by using for its cover one of the 16 photographic portraits made by Andy Warhol in 1984, also known as “The Orange Series” or “The Prince Series”. For the production of these works, however, Andy Warhol used some shots of Goldsmith from 1981, for which no consent had been obtained.
The Supreme Court, called upon to decide on the case, ruled on May 18th that Warhol’s use constituted an infringement of Goldsmith’s copyright, giving a more restrictive application than in the past of the test of fair use in connection with the phenomenon of the so-called appropriation art, understood as an artistic current that is based on the appropriation of previous works of art, modifying them in a transformative way. According to the judges, in fact, the images by Andy Warhol that appeared on the cover of “Vanity Fair” were not sufficiently different from the original, and therefore did not meet the requirement of transformative use. In fact, there are already important precedents in this respect, such as the well-known case concerning the photograph of Jeff Koons’ “8 puppies” (Rogers v. Koons, April 2, 1992, 960 F.2d 301). The Supreme Court’s decision confirms this orientation and could have important consequences – at least on the commercial uses of appropriative art.