Warhol v. Goldsmith Case Also Carries Major Implications for AI-Generated Works
By Gary Symons
TLL Editor in Chief
The US Supreme Court has ruled images of the musician Prince by Andy Warhol violated the copyright of photographer Lynn Goldsmith.
The ruling has massive implications for both human artists and for those using artificial intelligence to generate images, videos and music, experts say.
Randy McCarthy, a US patent attorney and partner at the law firm Hall Estill, says the Supreme Court decision defines the law over ‘fair use’ with far reaching impacts for copyright law in a variety of fields.
“The Supreme Court has upheld the Second Circuit’s decision that (the) Andy Warhol Foundation infringed the copyrights of the photographer, and that the changes made by AWF were not sufficient to qualify as fair use,” explains McCarthy. “This is an interesting development in that it provides further guidance on how the courts will examine questions relating to transformation.”
Transformation is at the heart of the ongoing debate over generative AI systems, that are typically ‘trained’ by using images or music from human artists, and then generate images or music based on prompts from users. In a number of high-profile cases recently, generative AI has been used to create songs that seem to be performed by top musical artists like Drake or The Weeknd.
The 7-2 Supreme Court ruling now holds that any artistic work must be truly transformative to avoid violating an artist’s copyright. The images created by Warhol were silkscreens based on Goldsmith’s photograph of the musician Prince, and while the coloring was different, the court held that the image was recognizably the same.
The Supreme Court rejected arguments made by the Andy Warhol Foundation that the work was sufficiently transformative and did not violate copyright laws.
Interestingly, the ruling in the US follows another case in which Ed Sheeran won a ruling that his song “Thinking Out Loud” did not violate the copyright of Marvin Gaye’s much earlier hit “Let’s Get It On,” despite using the same chord pattern. In that case, the court held that the chord sequence is one used in many different pop songs, and that other aspects of Sheeran’s song were very different from “Let’s Get It On.”
That was not the case in the Warhol case, according to the Supreme Court ruling.
“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original,” Justice Sonia Sotomayor wrote in the majority opinion.
This case has been closely watched by the entertainment industry and the artistic community for many years, as it centres on the “fair use” doctrine in copyright law, which permits the unlicensed use of copyright-protected works in certain circumstances, such as the meaning, the message, and whether the derivative work is a major transformation of the original.
Warhol originally created the silk screen images for a 1984 Vanity Fair article about Prince, basing them on photos taken by Goldsmith three years earlier. The copyright issues came up after Warhol’s image was reused by Vanity Fair owner Conde Nast after Prince’s death in 2016.
In 2019, a federal judge ruled initially in the artist’s favor, saying Warhol’s images had “transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.”
But in 2021, a federal appeals court overturned that decision, leading to the Supreme Court case. That court ruled that Warhol’s “signature style” was not sufficiently transformative to Goldsmith’s image and did not create a work that was “fundamentally different and new.”
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Both the Recording Industry Assn. of America and the National Music Publishers Assn. had advocated for a copyright violation decision in this case. They celebrated the ruling, calling it a victory for the creators of original works.
“Today’s Warhol Foundation decision is a massive victory for songwriters and music publishers,” said the NMPA. “This is an important win that prevents an expansion of the fair use defense based on claims of transformative use. It allows songwriters and music publishers to better protect their works from unauthorized uses, something which will continue to be challenged in unprecedented ways in the AI era.
“As we reinforced in our amicus brief, copyright owners should have the right to make or approve decisions about new, reimagined uses of their works,” the Association added. “This decision enhances our ability to protect songwriters from increasingly broad claims from would-be infringers of fair use, strengthening creators’ rights to determine how their art is exploited and valued.”
But McCarthy says artists shouldn’t be celebrating too much, because the ruling specifically makes it clear that, if there is enough difference between original and derivative works, then copyright protection does not apply. For example, in the case of generative AI, images that are based on an artist’s style, but are significantly different from that artist’s images, would not win any additional protections under this ruling.
“In other words, it is evident that ‘transformation’ for purposes of copyright law in an AI system context will continue to rely heavily upon what the resulting work looks like in comparison to the original work,” McCarthy argues. “This is how existing copyright law works as well. This should be a win for AI system users, provided that the output is sufficiently transformed and the input cannot be easily identified from an examination of the output content.”
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