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The US Supreme Court is going to hear a case brought by a photographer over Andy Warhol’s use of her photographs in making screen prints featuring legendary music icon Prince. The lawsuit which has been going on since 2017 pits the Andy Warhol Foundation against photographer Lynn Goldsmith.

In 1981 Goldsmith took photographs of Prince on an assignment for Newsweek magazine. In 1984 she licensed an image to Vanity Fair, who used it when commissioning pop-art icon Andy Warhol to create an illustration. Warhol then also used the image to make a series of screen prints called the Prince Series. These screen prints are in a similar style to Warhol’s iconic screen prints of Marilyn Monroe and others, which have worldwide fame.

Goldsmith said she only found out about these images when Vanity Fair used one of them to illustrate an article about Prince following his death in 2016. After approaching the Andy Warhol Foundation, the foundation sued her, seeking a ruling that Warhol’s use of her photograph was fair use and therefore not an infringement of Goldsmith’s copyright. The New York court agreed that it was fair use, holding that Warhol’s colour screen prints were in “stark contrast” to Goldsmith’s black and white photograph, Warhol’s works transformed Goldsmith’s photograph of Prince as a “vulnerable human being” instead depicting him as an “iconic, larger-than-life figure.” Under the current law, whether a new work has “transformed” the original is a key question in determining whether it falls within the fair use doctrine.

The appeal court, however, took a different view. It found that Goldsmith’s original photo remained the “recognizable foundation upon which the Prince series is built” and as such that it did not constitute transformative use. The court took the view that to be transformative a work must have a “fundamentally different and new artistic purpose and character.”

The Warhol Foundation appealed to the Supreme Court, which has now agreed to hear the case.

Lawyers on both sides consider the matter to be high stakes. The Andy Warhol Foundation’s lawyers claim the appeal court ruling chills artistic speech, and risks not just future artworks, but the enjoyment of existing works. Goldsmith, on the other hand, maintains that she is fighting for her own rights and those of all photographers to make a living by licensing their creative works, and to decide how and when to exploit their work or allow others to do so.

The judgment is likely to be an important ruling on the fair use doctrine in US copyright law, which is likely to clarify the extent to which a work must be transformative to avoid infringing the copyright in the original work. Artists and other content producers around the world who rely on fair use will no doubt be watching with interest. zoom-in will report on developments.