Warhol vs. Goldsmith: A Copyright Battle On its Way to the Supreme Court Is Somehow NFT-Related

The US Supreme Court is set to hear an enduring copyright dispute between the estate of Andy Warhol and famed photographer Lynn Goldsmith later this year. But how exactly does all of this tie back to NFTs? Well, we first need to go back to the beginning, some 40 years ago, to be exact.

In 1981, the renowned music photographer, director, and writer Lynn Goldsmith took on an assignment to photograph a then up-and-coming music artist named Prince for an article in Newsweek. However, the photographs were never published and remained in their archives. It wasn’t until 1984, right around the time that the movie and album of the same name, Purple Rain, shot Prince into international stardom, that Vanity Fair took an interest in the photos. 

Once licensed from Goldsmith for $400, the magazine commissioned Andy Warhol to create artwork for a feature on Prince entitled Purple Fame. To make the artwork, Warhol used a cropped photo of one of Goldsmith’s images from the 1981 shoot. He went on to produce a series of 16 variations which include 12 silkscreen paintings, two drawings, and two screen prints on paper – reminiscent of his well-known pieces of Marilyn Monroe and the Mona Lisa almost two decades earlier. 

The Legal Battle Begins

Allegedly, it wasn’t until after Prince’s death in April 2016 that Goldsmith became aware that her portrait of the musician had been used to promote his music. The picture was subsequently shared on social media in the wake of Prince’s passing. 

Upon Prince’s passing, the Andy Warhol Foundation for the Visual Arts licensed the use of Warhol’s so-called Prince Series for a magazine celebrating his life. One of Warhol’s works was featured on the cover of a special Vanity Fair edition entitled The Genius of Prince, with no credit given to Lynn Goldsmith.

The following year, Goldsmith sent a cease and desist letter to the Warhol Foundation, claiming that Warhol’s use of her image constituted copyright infringement. With the aim of obtaining a decision that the Pop artist had not committed copyright infringement with his “Prince Series,” the Warhol Foundation sued Goldsmith in New York in 2017.

The Southern District Court sided with the Warhol Foundation in 2019. Goldsmith appealed the decision. In August of last year, a three-judge panel of the 2nd US Circuit Court of Appeals unanimously ruled in Goldsmith’s favor, holding that Warhol’s work was not fair use because it was a clear attempt to appropriate the appeal of her photo.

Now, the case is heading to the Supreme Court. Warhol’s estate is arguing that the artist’s work should be considered fair use because it is “transformative.”

This dispute has been ongoing for nearly four years now, with both sides dug in and unwilling to back down. It will be interesting to see how the Supreme Court rules on this case, as it could have far-reaching implications for copyright law and the use of images in art.

The news arrives as interest in Warhol’s work (and life) has been growing as of late. Netflix recently released a six-part documentary series based on the book about the artist, entitled The Andy Warhol Diaries. In May, the famous Marilyn Monroe portrait was auctioned at Christie’s and sold for a record $195 million to become one of the most expensive artworks ever sold.

Copyright Infringement and the Impact On the Nature of NFTs

NFTs, or non-fungible tokens, have been making headlines lately as the new hot investment. These digital assets are unique and cannot be replaced, which makes them perfect for things like art and collectibles. And that’s where Warhol and Goldsmith come in. 

This case is important because it could set a precedent for how NFTs are treated under copyright law. If Warhol’s estate wins, it would mean that artists can freely use others’ work in their NFTs without permission. But if Goldsmith wins, it could put a damper on the NFT market by making it riskier for artists to use others’ work.

Brian L. Frye, a professor of law at the University of Kentucky specializing in copyright and intellectual property, took it upon himself to mint a collection of the Purple Fame NFTs. He did so as a critique of what he sees as “excessive” protection of copyrights.

Minting NFTs refers to the process of minting unique digital assets on the blockchain. This allows artists and creators to tokenize their work, which can then be bought, sold, or traded on decentralized applications (DApps). DApps are powered by smart contracts, which are self-executing contracts that run on the blockchain. This means that all transactions made on a DAPP are transparent, secure, and cannot be tampered with.

In this case, Frye created his own Warhol-inspired images and minted them as NFTs. Frye argues that copyright protection has gone too far when even “banal” works of art can be protected for decades after the death of the artist.

He argues that copyright laws can’t and don’t protect the artwork. “Using images of the paintings to sell the NFTs can’t be infringing, at least with respect to Warhol, because there’s no copyright to infringe, at least for the time being”. Frye continued, “Unless and until the Supreme Court reverses the Second Circuit’s holding, Warhol’s ‘Prince Series’ paintings are in the public domain.”

The Consequences Are (Possibly) Dire

The Goldsmith v Warhol Foundation case will be heard by the US Supreme Court in the fall of 2022, although no specific date has been set yet.

If the Supreme Court rules in Lynn Goldsmith’s favor, it will likely strengthen the cases of all photographers in future similar copyright disputes. It has also sparked a new debate over the legality of appropriated material utilized by artists in their paintings, prints, and yes, NFTs.

While The Andy Warhol Estate is used to cans of Campbell’s soup, this could mean opening up a can of worms which would set a legal precedent that would make it harder for them to profit off of Warhol’s work.