The Supreme Court on Wednesday will hear a case whose outcome will be as closely watched by artists as attorneys. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith will ask the justices to, in a legal idiom, weigh the mysteries of originality and the taint of plagiarism. 

The facts of the case touch on some of the brightest stars in America’s creative firmament. For a Vanity Fair assignment, the Pop icon Andrew “Andy” Warhol riffed on a 1981 set of photographs taken by the photographer Lynn Goldsmith of the musician “Prince” Rogers Nelson. Vanity Fair paid Ms. Goldsmith for their use.

However, Vanity Fair’s parent company, Condé Nast, paid $10,250 for another one of Warhol’s adaptations of the Prince images, this time silkscreened in orange. Ms. Goldsmith did not receive a percentage of that licensing fee, which went exclusively to the Andy Warhol Foundation. 

No one disputes that Warhol, famously derivative in his artistic practice, used Ms. Goldsmith’s photographs. The question is whether that use was “fair” under the Copyright Act. If it was, the host of protections that accompany “works of authorship,” such as the right to reproduce and display, would not hold. 

It is not surprising that it would be Warhol’s oeuvre that would prompt such consideration. From Campbell’s soup cans to Brillo boxes to images of Marilyn Monroe, Pop Art, in the words of the Museum of Modern Art, “mirrored, critiqued, and, at times, incorporated everyday items, consumer goods, and mass media messaging and imagery.”

Warhol was wont to say that “art is what you can get away with.” The trial court agreed, pointing out that evaluating Warhol’s alterations and adjustments is “inherently subjective.” The riders of the Second Circuit of the United States Court of Appeals disagreed, holding that courts may not ferret out fair use by endeavoring to“ascertain the intent behind or meaning of the works at issue.”

Instead, citing a library of case law, the Second Circuit held that the role of a judge is to determine if the secondary work retains “the essential elements of its source material.” If it does, it is not “transformative,” and thus is denied the safe harbor of fair use. 

The Warhol Foundation points to the 16 images in the Prince series to argue that the master’s method, visible in color, process, and aesthetic sensibility, “added something new” to the original photographs in the form of a fresh “meaning” or “message” not present in Ms. Goldsmith’s originals. 

The stewards of Warhol’s legacy and estate warn that narrowing the test for fair use to a superficial perception of similarity would “chill artistic speech by substantially foreclosing an entire category of creative expression from the protection of the fair use doctrine.”

For her part, Ms. Goldsmith, whose position is supported by the United States government, argues that if Warhol wanted to use images of Prince as the substrate for his art he could have photographed the musician himself, or licensed photographs, as he did with the initial series. 

Ms. Goldsmith also argues that too wide a conception of fair use would effectively vitiate the protections that are at the core of  copyright. As she articulated her vision of the state of play to the court: “Create innovative works, and copyright law guarantees your right to control if, when, and how your works are viewed, distributed, reproduced, or adapted.” 

Ms. Goldsmith’s position is that from “the common law onward, adding new meanings to original works has never absolved copiers of liability for infringement.” Her lawyers argue that the particulars of this case, where Warhol’s image “substituted for Goldsmith’s photograph in the same magazine market,” underline the violation of fair use. 

In adjudicating between the photographer and the artist — oral arguments are allotted 70 minutes — the justices could linger over the admonition of one of their predecessors. In the 1903 case of Bleistein v. Donaldson Lithographing Co, Justice Oliver Wendell Holmes wrote that it “would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”