Supreme Court Smackdown

The composer Igor Stravinsky (The Firebird Suite) quipped that "great composers steal, mediocre ones borrow." In other words, the quality of the theft is inextricably linked to the quality of the work in which the purloined art makes an appearance. And vice versa.

The photographer Lynn Goldsmith gave Vanity Fair a one-use license for her photo of Prince. Vanity Fair contracted Andy Warhol to turn the photo into a purple silkscreen for a 1984 issue. Warhol went on to produce a series of Prince silkscreens, not unlike dozens of other celebrity silkscreens he churned out over a span of decades. In 2016, Vanity Fair bought a license for one of Warhol's Prince silkscreens, this one orange rather than purple. Warhol's foundation was paid $10,000; Goldsmith received nothing.

When Goldsmith learned of the offense, she sued. She hadn't given Vanity Fair another license to create, display or sell Warhol's "transformation" of that photo. And Warhol hadn't paid her to create the series.

Confronted with the suit, Warhol's people feigned outrage, claiming that Goldsmith was trying to chisel them. Clearly, the Warhol Foundation was counting on Goldsmith to bow down to Warhol's reputation as an aggressively shameless and, thanks to his fame, an unassailable appropriator of source material. Warhol's people claimed that Andy had transformed Goldsmith's photo with sufficient artfulness that it had become a stand-alone derivative work and thus was protected by the safe harbor of "fair use."

The US Supreme Court thought otherwise. In a 7-2 ruling for Goldsmith, the justices zeroed in the nexus between copying and monetization of the original photograph. In short, any derivative work that shares the same purpose as the original work (depicting Prince in an artistic, rather than satirical or critical manner) and the derivative's work's primary goal is commercial gain, fair use protection is generally not supported. Vanity Fair never secured a license from Goldsmith in 2016 to print the Warhol silkscreen and Warhol's foundation failed to pay or credit Goldsmith whenever they displayed, sold or licensed his silkscreen of her photograph.

This landmark decision sends a clear message to female artists, content creators and founders - intellectual property rights matter and deserve protection. It is a call to resist any misplaced sympathy or solidarity with those who exploit or appropriate their work without proper permission.

It also highlights the challenges they may face when standing up against corporations that engage in unauthorized use or counterfeit their work. Female founders/artists should be emboldened by this ruling to assert their rights, demand proper compensation, and ensure that their work is not undervalued or appropriated. Creativity and talent have real value. They must be respected, celebrated, and appropriately rewarded.

All artists who create original works or products should commit to three bedrock principles before entering the marketplace.

•  I made it.

• I own it.

• I deserve to get paid for it, any time, EVERY. SINGLE. TIME.