Why are Warhol’s Prince works before the US Supreme Court?

March 30, 2023Media Mention
BBC News - The Inquiry

Aaron Moss, Litigation Department chair and author of Copyright Lately, shared his insights with BBC News – The Inquiry regarding fair use in artistic works, specifically in the case of Andy Warhol’s portrait of Prince.


“It’s a tricky case because it really comes down to an age old question, should law follow culture, or should culture follow and respect the law.”

“The Supreme Court needs to come up with a test that is going to serve two purposes. First, it’s going to need to remain true to the purposes of the Copyright Act, which are to provide an incentive for artists to create. And it’s also going to need to leave breathing room for free use of underlying works for certain purposes that create new meaning and new expression for a different purpose.”

“And the last time that I heard a case involving fair use in creative work was in 1994, so almost 30 years ago. That case was involving a parody version of Roy Orbison’s song “Oh! Pretty Woman” by 2 Live Crew. The Warhol’s subject obviously involves a very different subject matter, art, and photographs, so the Supreme Court is really entering in unchartered territory with this Warhol case.”

“It’s a big misconception that copyright somehow travels with the material object which is embodied. If you own a particular painting by Warhol or any other artists, you are allowed to sell the painting, you’re allowed to display it in your home, but you are not allowed to, for example, copy it and create posters based on it and then sell those posters because you don’t own the underlying copyright.”