Andy Warhol and his work is at the center of a case which may change the way art and copyright interact.

In 2021, an appeals court declared that Andy Warhol, famous pop artist of the 60s and 70s, had illegally appropriated a photograph taken by photographer Lynn Goldsmith to make his silk-screened portraits of Prince.

The ruling distinctly bothered the art world.

“It strikes at the heart of the way artists today have been raised to make and understand art,” the Brooklyn Museum opined in a brief to the Supreme Court, which is now reconsidering the appeals court’s conclusion about copyright law.

The appeals courts decision threatens the legal status of all art that references other art, which it could be said a majority of art does.

In its own brief, the Andy Warhol Foundation, whose fight with Goldsmith got the case started, quoted a certain Blake Gopnik, writing: “The act of ‘retaining the essential elements’ of an extant image is Warhol’s entire m.o. as one of the most important of all modern artists… There’s a lot that judges can do with the stroke of a pen, but rewriting art history isn’t one of them.”

If the appeals court’s ruling is upheld, it will open hundreds of thousands of artworks to be the subjects of lawsuits about ‘appropriation’ simply for referencing other works.

Referencing, and even copying art has a long, rich tradition. There are dozens of copies of the Mona Lisa, because repainting it is how Da Vinci’s students learned. Architectural art has been spread around the world by talented copyists. Transformative art, like Warhol’s, is art that uses existing images to comment on them, their subjects, the changing context of the world, and art itself.

The Supreme Court’s decision is expected any day now, and the way it’s written may have significant, long-running consequences for art and copyright.

Photo: Carlos Yudica / Shutterstock