While he was alive, Prince was notoriously low-key, averse to cameras, and pretty much against social media. His fight against the use of his Art on platforms such as YouTube, Instagram, or Facebook – which he did not even allow an official video, much less “pirate” – made his music difficult to find and share for years. Prince was right, of course. “Since YouTube doesn’t pay fair licensing fees, isn’t this a nonsensical question?” he explained in a tweet when asked about his opposition. “Shouldn’t your concerns be directed to YouTube and not here?”, he replied to the fan who questioned him for his decision.

Therefore, it is more than symbolic that it is his image that is today at the forefront of one of the most significant cases on the definition between Art, Copyright, and Fair Use. For consumers, it may seem like semantics, but it’s far from it, especially with technology making the field of author and source material even grayer. I’m talking about the victory of photographer Lynn Goldsmith, a legend for those who love music and Culture in general and who is the author of an iconic photo of the idol, better known to us as the Orange Prince, signed not by Lynn, but by Andy Warhol.

The story of the painting deserves a separate post, as well as Lynn’s profile, but the legal imbroglio, however, is extremely relevant because it has been six years since the lawsuit filed by the Andy Warhol Foundation against the photographer generated the violation rebuttal of copyright and was raised with appeals until its conclusion, in 2023. As the highest court of Justice, the Supreme Court of the United States closed the case definitively, with the defeat of Warhol’s representatives. In other words, there was no “fair use” of an iconic image, nor was there a significant transformation of the material that would bring it to the level of something original.

The court’s decision in Warhol v Goldsmith will affect all artistic expression, which is important to Lynn. Too bad Prince, who died the year the lawsuit started, couldn’t celebrate with her. Incidentally, it was precisely his premature and surprising death that kicked off the discussion.

The original photo was taken in 1981 when he was still rising in the market and was supposed to be published in Newsweek. However, the close-ups were not used by the publication, and the negatives – owned by Lynn – remained with her. Just three years later, with the mega success of Purple Rain, Prince became an international star and Vanity Fair needed an unpublished image of the artist to illustrate the article Purple Fame, about the fame of the singer. For this, the magazine hired Warhol to create the illustration and paid Lynn four hundred dollars in licensing to use one of the unpublished records as an “artistic reference”. The arrangement was to credit her for using the original photograph for the illustration. Thus was born the Prince Series, which are 14 serigraphs and 2 pencil drawings of the image. One of these prints, the Purple Prince, was published in Vanity Fair.

Between 1984 and 2016, apparently, everything was fine, but with the singer’s death, Condé Nast (parent company of Vanity Fair and The New Yorker) sought an image to illustrate the cover of a special and commemorative edition that was baptized as The Genius of Prince. In order to use one of the images from the Orange Prince collection, Condé Nast paid $10,000 to the Andy Warhol Foundation, which owns the artist’s copyright, but published the image without crediting or paying Lynn Goldsmith. For the photographer, there was copyright infringement, for the Foundation, there was “fair use” because the use was “for purposes such as criticism, comment, news reporting, teaching. . . scholarship or research”.

The use of “fair use” has always been a very tricky thing for journalists, it’s a complex discussion. But in this case, the Foundation’s argument was dubious: if that were the case, Condé Nast would not have had to pay for the license. And paid. Arguing also that fair use was for the photo, but that the paid material was because Warhol “transformed” the photo it was based on, poses another still current question: what exactly does “transforming” a work mean?

In the process, the Foundation alleged that it was about adding something new and that it changed the message and expression of the photo used as a basis, in this case, a black and white image that highlighted Prince’s vulnerability and that would have undergone a significant alteration with the colors and elements painted by Warhol, turning him into an icon. For the photographer, the objective was not to diminish the painter’s artistic contribution in any way but to clarify that no transformation takes away her copyright, mainly using vague and subjective arguments as a basis. Nothing changes the fact that – to create the Orange Prince – Warhol needed Lynn’s photo. There is no significant or subtle transformation that changes reality.

This decision directly impacts the discussions of NFTs and Artificial Intelligence because now there is a Supreme Court opinion that can be used as a basis to define the limit of artistic “freedom” about existing works and what copyright law restrictions are.

“The original works of [Lynn] Goldsmith, like those of other photographers, are entitled to copyright protection, even against famous artists. That protection includes the right to prepare derivative works that transform the original,” wrote Judge Sonia Sotomayor, rapporteur on the case. The two parties opposing the final decision, Judge Elena Kagan and Judge John Roberts, worry that this view “stifles creativity of all kinds” and that it “makes our world poorer.”

A subject that will still pay off. One wonders that, upon this decision, the copyright holders of Marilyn Monroe and even more so the Shot Sage Blue Marilyn, who used a photo taken to promote the 1953 film, Niagara Falls, 1953, may raise the same question. Sold for $200 million in 2022, it is now Andy Warhol’s most expensive painting. The family of Jock Carroll – the original photographer – would have an interesting takeaway from this process by Lynn Goldsmith. The Foundation opened Pandora’s box by questioning the author. It would have been easier to pay and fix the lack of credit…

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