One of the greatest artists of the 20h century will be on trial at the Supreme Court this fall. While the high court doesn’t do “trials” in the Perry Mason sense of the word, the Nine will hear a case that touches on the core of Andy Warhol’s artistic process — his use of other people’s work in making his own iconic images of the likes of Marilyn Monroe, Campbell’s Soup cans, and Jacqueline Kennedy. 

Coming on the heels of the announcement of the expected $200 million sale of a Warhol painting and a Netflix documentary about the Pop Art icon, Warhol’s 15 minutes of fame are far from over. In a technological era saturated with memes and visual images, Warhol Foundation v. Goldsmith promises to set the rules of the road for an increasingly imitative culture.   

In the process, not only Warhol’s oeuvre is at stake, but those of a wide cohort of Pop artists, defined by the Museum of Modern Art as a movement that crafted “art that mirrored, critiqued, and, at times, incorporated everyday items, consumer goods, and mass media messaging and imagery.” 

The case pits the Andy Warhol Foundation, custodian of the artist’s legacy, against the photographer Lynne Goldsmith. The facts cut a swath through 20th century art and culture. Mrs. Goldsmith took a picture of the artist Prince in 1981 on assignment for Newsweek. In 1984, the image was licensed to Vanity Fair for two reproductions that would include attribution to Mrs. Goldsmith. 

Vanity Fair then turned the images over Warhol, who went on to use them for 16 silkscreens and pencil drawings. This suit concerns whether Vanity Fair violated Mrs. Goldsmith’s copyright, and if it did whether that constituted “fair use,” which allows the unlicensed use of copyright-protected works in specific circumstances, including criticism, news reporting, teaching, and research. 

While the district court found for the Warhol Foundation, on appeal the riders of the the Second Circuit of the United States Court of Appeals delivered Mrs. Goldsmith a resounding victory, holding that Warhol’s work was similar enough to the original photograph to infringe on copyright under the “ordinary observer test” — if an average looker took a gander, would she divine similarity? 

In this case, the Second Circuit held that she would. In assessing this resemblance, the riders held that only a visual match was relevant in determining infringement, and that courts were prohibited from efforts to “ascertain the intent behind or meaning of the works at issue.”

The high court will meditate on whether “a work of art is ‘transformative’ — and thus subsumed under fair use — when it conveys a different meaning or message from its source material.” The Warhol Foundation maintains that the transformation of the photographs into “a series of iconic works commenting on celebrity and consumerism” is a difference not of degree, but of kind. 

The Foundation points to “a flat, impersonal, disembodied, mask-like appearance” to the prints as proof positive that Warhol “overhauled” the photographs. On the other hand, the Second Circuit held that the Warhol prints “remain[ed] the recognizable foundation upon which the Prince Series is built.” 

The case will turn on whether the justices see in Warhol a generational innovator or derivative designer and how bright of a line they draw between imitation and purloining. We do not need to strain to imagine what the artist himself would have thought about all of this. He once said: “Art is anything you can get away with.”