Various interested parties have filed briefs advising the justices about what approach to take, including movie and music industry groups, educational institutions and individual artists. The justices also debated a relevant Supreme Court precedent cited by both sides, a 1994 ruling in which the court held that it was fair use when 2 Live Crew created a song called “Pretty Woman” that was a parody of Roy Orbison’s “Oh, Pretty Woman.” In another pop culture reference, Lisa Blatt, Goldsmith’s lawyer, brought up the value of spinoff works to the entertainment industry, citing TV shows that were based on the 1970s comedy "All in the Family," which itself was based on a British sitcom. “You make it sound simple, but maybe it’s not so simple, at least in some cases, to determine what is the meaning or message of a work of art,” Alito told Martinez. While an average person might view a copy of Leonardo da Vinci’s “Mona Lisa” in which the subject wears a different color of dress, an expert in Renaissance art might see it as transformative, he said. Justice Samuel Alito questioned how much courts should defer to expert witnesses when deciding whether a work shows a different meaning. It must, “at a bare minimum, comprise something more than the imposition of another artist’s style on the primary work,” the court added. The appeals court faulted the district court for focusing on the artist’s intent, saying a judge “should not assume the role of art critic.” Instead, a judge must examine whether the new work is of a completely different character from that of the original, the court said. Circuit Court of Appeals ruled in favor of Goldsmith in March 2021. The foundation sought Supreme Court review after the New York-based 2nd U.S. In 2019, a federal judge ruled in the foundation’s favor, saying Warhol’s images were transformative because, while Goldsmith’s photo showed a “vulnerable human being,” the Warhol prints depicted an “iconic, larger-than-life figure.” Andy Warhol Foundation for the Visual Arts Images from Andy Warhol's series of the musician Prince. The next year, the issue ended up in court, with Goldsmith and the foundation suing each other to determine whether Warhol’s image constituted fair use. Warhol died in 1987, and the relevant works and copyright are held by the Andy Warhol Foundation, which permitted Vanity Fair to use the image in 2016. But Goldsmith said she was not aware that Warhol had created other images that were not licensed, a fact she became aware of only after Vanity Fair publisher Condé Nast used a different image as part of a 2016 Prince tribute immediately after his death. Under a license it had obtained from Goldsmith, Vanity Fair used a Warhol illustration based on the photo in its November 1984 issue without any problems’ arising. The style was similar to that of other famous Warhol works, such as his portraits of Marilyn Monroe. While the original photo, a portrait of Prince, was black and white, the silkscreen prints superimposed bright colors over a cropped version of the original photo. Goldsmith sued over Warhol’s use of her 1981 photograph of Prince, then a rising star, before he attained global fame on the back of hits like "Little Red Corvette" and "When Doves Cry." As part of an arrangement with Vanity Fair magazine three years later, Warhol created a series of silkscreen prints, as well as two pencil sketches, based on Goldsmith’s image. Under the law, limited “fair use” of a pre-existing artwork is lawful in certain contexts, including when the new work conveys a different meaning or message. The court wrestled with how to define whether a new work based on an existing one is “transformative" - meaning it does not violate copyright law. The lively oral argument, in which conservative Justice Clarence Thomas revealed he was once a Prince fan, concerns a legal question of considerable interest to people in all kinds of creative industries, including television, film and fine art. Lynn Goldsmith Andy Warhol Foundation for the Visual Arts The original Lynn Goldsmith photograph of Prince and Andy Warhol's portrait of the musician. As a result, one option might be to throw out the ruling and require the lower court to try again. But other justices seemed concerned that an appeals court had minimized, or even ruled out, any analysis of whether Warhol's work had a significantly different meaning or message from those of Goldsmith's photo.
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