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She took a photo of Prince that Andy Warhol used. It's about to change the course of copyright

AYESHA RASCOE, HOST:

The Supreme Court this week hears arguments in a case that is - let's all sigh with relief - nowhere on the culture war barometer. It is a case of huge importance to creative artists of all kinds because it involves copyright. OK, now, look, look, don't mute us. We promise this copyright story is not going to be boring. And joining us to prove that is NPR legal affairs correspondent Nina Totenberg. Nina, welcome.

NINA TOTENBERG, BYLINE: Thank you so much.

RASCOE: All right, so, Nina, who are the warring parties in this case?

TOTENBERG: You know all those famous Andy Warhol silkscreen prints of Marilyn Monroe and Liz Taylor? This case is about the Prince series. On one side of the dispute is Lynn Goldsmith, famous for photographing rock stars and whose work is on more than a hundred album covers. Goldsmith got a commission to shoot a series of photos of Prince for Newsweek in 1981, when Prince was just beginning to take off. And I won't say more, except to note that she was sort of creating a portrait that she would later say was a portrait of vulnerability. Newsweek used the concert photo, and Goldsmith kept the other photos in her files for future publication or licensing.

Enter now, Vanity Fair. It's a few years later, and by then, Prince was a superstar. And the magazine commissioned Andy Warhol to make an illustration of Prince for an article it was running about him and to use, as a reference, one of Lynn Goldsmith's black-and-white photos. The magazine paid Goldsmith $400 in licensing fees, and it promised in writing only to use the image in this one Vanity Fair issue. There is, by the way, no evidence in the record that Warhol knew about the licensing fee. But in any event, he went beyond the magazine's licensing agreement and created a set of 16 Prince silkscreens that have since been sold and reproduced to the tune of hundreds of millions of dollars in profits for the Andy Warhol Foundation, which is a nonprofit that was set up after his death.

RASCOE: So did he get the photographer's permission or pay a licensing fee?

TOTENBERG: No, and therein lies the case before the Supreme Court. Lynn Goldsmith says he infringed her copyright and that the Warhol Foundation owes her licensing fees to the tune of millions of dollars. The foundation says that's nonsense, that Warhol copyrighted his iconic Prince series and that his treatment was, in legal terms, transformative. Prince no longer looks vulnerable. The tilt of his head is different. The photo is cropped and colored to create a, quote, "flat, impersonal, disembodied, mask-like appearance that is no longer vulnerable but" - drums, please - "iconic."

RASCOE: So how big a deal is this case? Like, what are the potential ramifications beyond this Prince picture?

TOTENBERG: Well, let's put it this way. More than three dozen friend of the court briefs have been filed in this case - that's a lot - arguing on one side or the other, representing everyone from the American Association of Publishers, the Motion Picture Association, and our own union, Ayesha, the American Federation of TV and Radio Artists. So it is a huge deal. The outcome could shift the law to favor more control by the original artist. But doing that could also inhibit artists and other content creators who build on existing work in everything from music and posters to AI creations and documentaries.

RASCOE: NPR legal affairs correspondent Nina Totenberg. Thank you so much.

TOTENBERG: Thank you, Ayesha.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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