If you’ve turned on the radio in the past decade, you’ve probably heard Robin Thicke’s hit song “Blurred Lines,” which dominated the Billboard Hot 100 list for many weeks in 2013.Shortly following the height of the song’s success, The Marvin Gaye estate sued Thicke, stating that he stole Gaye’s 1977 hit song “Got To Give It Up.” In 2015, Thicke paid Gaye’s estate a $7.3 million dollar settlement after being found guilty of copyright infringement.
To me, it felt obvious why the case favored Marvin Gaye in the end, but nonetheless, the decision took over two years, an intense legal battle, and several copyright experts to come to a sound (no pun intended) conclusion.
Now imagine if this case was even more nuanced, perhaps a subject within a realm of aesthetic preferences and opinions… maybe something like a work of visual art that, more times than not, finds its way into a museum or gallery rather than the court of law.
And that brings us to a copyright battle that could change art making forever. In 1981, Rockstar photographer Lynn Goldsmith shot a series of Prince for a Newsweek article. As stated by NPR reporter Nina Totenberg, the photographs did not appear in the article and only resurfaced three years later when Vanity Fair commissioned Andy Warhol to create a work of art using Goldsmith’s photographs for reference. Goldsmith received $400 as part of a licensing agreement, understanding that Warhol’s creations would exclusively appear in the magazine.
Warhol went on to produce 16 “Prince prints,” that accumulated millions of dollars over the years and appeared in a lot of places other than Vanity Fair. It remains unclear how much Warhol knew about the licensing agreement. But historically, Warhol has been known to toe the line between “fair use” and copyright infringement, as seen in his famous Campbell's Soup Cans.
When Prince died suddenly in 2016, the prints reappeared in Vanity Fair’s parent company Conde Nast’s tribute issue to the beloved artist. Goldsmith sued The Andy Warhol Foundation (AWF) after realizing there was no licensing agreement this time.
The case has since made its way to the Supreme Court. Earlier this month, Supreme Court justices examined the Warhol prints, and even seemed to have a little fun with it. During one of the first sessions, Justice Thomas said “Let’s say I am a Prince fan—Which I was in the 80s…” Before he could make his next point, Justice Kagan responded “No longer?” and the entire courtroom broke out in laughter.
After a moment of comedic relief, it became evident this case was, in all seriousness, complicated. The prints exist in the art world: a realm of creativity and aesthetic preferences, built on differing opinions meant to challenge one another. Every person who views the prints has, and will have, their own set of biases, perspectives, and opinions that art is meant to bring forth. So, with that, how should the justices proceed?
Harvard law professor Rebecca Tushnet provided one answer to this question in a Harvard Law Today interview when she said:
“The key question is about transformation. When Andy Warhol turns a standard portrait photo into one of his celebrity portraits—which are very stylized and colorized, and repeated to make a commentary on the ubiquity of the celebrity image and the way in which celebrities become larger than life—is that sufficiently transformative to be fair use?”
“Transformative,” in legal terms, is a new subject that refers to another subject and, in doing so, creates a new message or understanding of that original reference. In this case, do Warhol’s adaptations of Goldsmith's photographs create a new meaning of the work, rendering it “transformative” or not?
Despite our world being stuck in a never-ending cycle of copy and pasting, remixing, and photoshopping, the lines between “transformative” and “fair use” become blurred (again, no pun intended.) But before we get an answer to this copyright mystery, maybe as a mental exercise, you might take a second and find versions of a “transformative” subject, whether as an advertisement, a social media post, or a work of art in your daily life.
The case will be closed by the end of the term, and soon enough, we'll find out at what point imitation truly is allowed to be the sincerest form of flattery.
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