The U.S. Supreme Court is set to ponder in a case centering on paintings by the late artist Andy Warhol a question as philosophical as it is legal: what is the line between art and copyright theft when artwork is inspired by other material?
The justices on Wednesday will hear arguments in a copyright dispute between Warhol's estate and celebrity photographer Lynn Goldsmith over his paintings based on a 1981 photograph she took of rock star Prince.
Goldsmith, 74, has said she learned of Warhol's works only after Prince's 2016 death. Goldsmith countersued the Andy Warhol Foundation for copyright infringement in 2017 after it asked a Manhattan federal court to rule that his works did not violate her rights. The Supreme Court will hear arguments in the estate's appeal of a lower court's decision favoring Goldsmith.
The high court's take on the case is "very hard to predict," said Harvard Law School professor Rebecca Tushnet, who wrote a brief supporting Warhol with other copyright scholars. The 2nd Circuit decided Warhol's paintings were "much closer to presenting the same work in a different form," more similar to a "derivative" work like an art reproduction than a transformative one.
"That's the worrisome scenario for fair use - that if the judge doesn't 'get it,' it's not going to be fair use," Tushnet added.
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