In 1984, Vanity Fair commissioned Andy Warhol to create an image of the then-emerging “artist known as Prince”. Warhol used a cropped photo based on a 1981 shot by photographer Lynn Goldsmith, later creating a for-sale run of 16 silkscreen images, The Prince Series. The question – of whether using Goldsmith’s image was ‘fair use’, has been occupying the federal courts for more than three years – and now Warhol’s estate is asking the US Supreme Court to weigh in on the matter.

In 2017, Goldsmith filed a copyright infringement claim against the Andy Warhol Foundation. That year, the foundation sued her, asking for a declaration that the paintings didn’t violate her copyright as the works were “entirely new creations”. In 2019, a judge ruled that Warhol surpassed Goldsmith’s copyright by transforming an image of a “vulnerable, uncomfortable person” into “an iconic, larger-than-life figure”.

However, in March 2021, the US Court of Appeals overturned that decision, stating: “Whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic – or for that matter, a judge – draws from the work.” Otherwise, “the law may well recognise any alteration as transformative”.

The foundation then asked for a rehearing following the US Supreme Court’s decision in Google v. Oracle, arguing that if Google can copy software code verbatim and have it be a transformative fair use, then surely Warhol’s work was, too. In September, the appeals court denied the foundation’s request, stating that the “novel and unusual context” of the Google dispute didn’t affect fair use analysis when it comes to visual artistic expression.

For Warhol’s legal team, the ruling “casts a cloud of legal uncertainty over an entire genre of visual art”, and they have filed a petition that asked the Supreme Court “whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material ... or whether a court is forbidden from considering the meaning of the accused work where it ‘recognisably deriv(es) from’ its source material”.

They added that the decision limits artistic expression, since creating new works as cultural commentary – à la Warhol and the larger pop art movement – could now amount to copyright infringement if the image is deemed too “recognisable” to be transformative.

Whether or not the Court decides to hear the appeal, the issue has raised a whole new array of legal questions for the Andy Warhol estate, as the artist made an entire career of reworking other people's photographs of public figures like Marilyn Monroe, Elizabeth Taylor, and Jackie Kennedy.