How Did Prince and Andy Warhol Wind Up before the Supreme Court?

Jessica Silbey, Boston University School of Law


The US Supreme Court will take another crack at defining the fair use doctrine of copyright law—a standard that has so far remained fairly oblique in the law. And to do so, the justices will have to consider the history of a law that stretches back to the earliest renderings of life in the United States.

The case before the court on October 12, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, hinges on a portrait of the artist Prince by photographer Lynn Goldsmith.

Goldsmith photographed the musician in her studio in 1981, just as his career was taking off. It was a quick session, she said in her testimony for the suit and Prince was uncomfortable and eager to split. She got the portrait—a black-and-white photo that became part of her oeuvre, but was never circulated.

A few years later, Vanity Fair paid Goldsmith to license her piece as an artistic reference photo. The magazine hired famed pop artist Andy Warhol to create a rendering of Prince based on Goldsmith’s photo, which ultimately ran with a story about Prince in a 1984 issue of Vanity Fair.

All this is fine. The problem came years later: in 2016, after the musician’s death, Condé Nast (Vanity Fair’s parent company), reached out to the Andy Warhol Foundation to use the same 1984 print for a special commemorative issue of the magazine. They discovered that Warhol hadn’t made just one print from Goldsmith’s photo; he’d made more than a dozen. Condé Nast paid the foundation to use another one of Warhol’s Prince prints (this time in orange) for the cover, but neither the magazine nor the Warhol Foundation paid Goldsmith again.

The question for the justices is whether that second use of a print infringes on her copyright in the photograph on which it was based.

“It’s an interesting case,” says Jessica Silbey, a Boston University School of Law professor, who studies intellectual property law. “One question that will come up is whether Vanity Fair had to pay Goldsmith an artist fee at all. Under the ‘fair use’ doctrine, you don’t need permission, that’s the whole point.” Silbey, also the Yanakakis Faculty Research Scholar at BU, dives deep into the nuances of this case with BU Today.