The Supreme Court recently granted appellate review in the case of Warhol v. Goldsmith, asking the somewhat alarming question of whether Warhol's color portraits are illegal art. Specifically, the court case asks whether Andy Warhol is a copyright infringer or a copyright fair user when he made one of his infamous color prints of the musician Prince (for a Vanity Fair cover) from a black and white photographic portrait made earlier by Lynn Goldsmith on assignment for Newsweek.
In the copyright and visual art communities, Warhol v. Goldsmith is a big deal. The Court of Appeals for the Second Circuit sided with the photographer, reasoning that the Warhol print was an unlawful derivative version of the underlying photograph, raising the specter that many (if not all) Warhol prints made in the same manner are unlawful. That is a scary concept for art collectors and museums as well as for artists who work in similar genres. But should anyone else care? And why does the Court? In the current climate when abortion access, voting rights, religious freedom, affirmative action in higher education, and the legality of state gun regulation are actively debated at the Supreme Court, why is a copyright case about contemporary art and photography a priority? Have the Supreme Court justices suddenly stumbled upon a new favorite (and previously obscure) legal field of intellectual property? Or is something else going on?
