Freedom of Expression and Andy Warhol’s Paintings of Prince   

A Prince portrait by Andy Warhol, using Lynn Goldsmith’s image as source material.

This week, the U.S. Supreme Court will hear a case centered on an art question with few easy answers: Did Andy Warhol violate photographer Lynn Goldsmith’s copyright when he used her photograph of the music legend Prince as the basis for a series of portraits?

The legal dispute began in 2016 when the Andy Warhol Foundation preemptively sued Goldsmith after concerns were raised over the use of her image. In the years since, the case has made its way through the lower courts, eventually reaching the U.S. District Court for the Southern District of New York, who ruled in 2019 in favor of the Andy Warhol Foundation. Last year, the Appellate Court, which hears appeals and is typically “the last word” in most cases, reversed the Southern District Court’s decision.

The judges are being asked to rule on the very nature of art

At the center of the case is Goldsmith, a celebrated portrait photographer who has photographed nearly every major music celebrity of her era, from Nirvana to Bob Marley, and shot over 100 album covers. In 1981, Newsweek commissioned Goldsmith to photograph Prince. The magazine didn’t end up using the photos, but Goldsmith retained the licensing for future use. Three years later, Vanity Fair commisioned Andy Warhol to create an image of Prince for a cover and paid Goldsmith a license fee to use one of her images as the reference point with the understanding that it would only be used for that issue.

This is where things get murky. Goldsmith said she was not aware that Warhol had created additional works outside of that agreement until they were published by Vanity Fair after Prince’s death in 2016. Those illustrations were copyrighted by Warhol and have since been sold and reproduced for hundreds of millions of dollars.

The Supreme Court’s decision will likely hinge on whether the justices view Warhol’s use of Goldsmith’s image as “fair use,” as the Warhol Foundation has argued.

“Fair use” is a legal doctrine in copyright law that “promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances,” according to a description from the U.S. Copyright Office. There are four factors that courts consider when determining fair use: (1) the purpose and character of the use (i.e. commercial or educational, etc.); (2) nature of the copyrighted work (a news article is more likely to be subject to fair use than a creative work like a movie or song); (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the market or value of the copyrighted work.

The first factor is likely the most important one in this case, as an oft-used defense is that the use is “transformative” use, meaning that the original copyrighted work has been “transformed” by the new creator to such a degree that new character or meaning is present. In this case, it is likely that Goldsmith will argue that Warhol’s use was not transformative — i.e. that his Prince silkscreen is demonstrably still her photograph and no new meaning has been created — while the Warhol Foundation will argue that it is transformative.

Making deliberations in court on an artwork’s purpose and character is a tricky business.

“The court system wasn’t intended to make judgment calls about the artistic value of something,” Kelley S. Gordon, an intellectual property lawyer who often works with artists, told ARTnews. “There’s a fine line there in terms of making a judgment call as to the importance of the work within art history versus whether if the work is transformative.”

The case goes beyond a quibble between artists, experts say

The case has generated heated opinions from artists to legal scholars.

“The briefs that are filed in support of each side really crossed the gamut,” said Gordon. “There are documentary filmmakers, there are photographers, there are museums. And they are split in half.”

Artist Barbara Kruger and curator Robert Storr jointly filed an amicus curiae brief on behalf of the Warhol Foundation, arguing that artists have always referenced and copied each other’s work. Kruger’s work is used as a primary example.

“[Kruger] views photographs and other visual media as constituting hard evidence of contemporary cultural life. By using preexisting photographs and videos, Ms. Kruger’s work is able to engage directly with this evidence, effectively annotating the visual artifacts of our times,” the attorneys for Kruger and Storr wrote. The brief concludes, “For many artists, the artistic message they seek to convey lies precisely in a verbatim or near-verbatim replication of the original work.”

Kruger and Storr are arguing that a tightening of the fair-use doctrine would have a detrimental effect on the creative process. In effect, artists and content creators, fearing costly litigation, may abstain from using or referencing copyrighted work and thus limiting cultural exchange and discourse.

In a recent piece for the Atlantic, media lawyer and filmmaker Paul Szynol said that the case is about more than a quibble between visual artists, but about an existential threat to the freedom of expression in the U.S. Any ruling in favor of Goldsmith, he wrote, would be “culturally dangerous”. 

He continued that “because the Supreme Court’s decision will generate a principle that will apply beyond this dispute, Goldsmith is attacking not just this particular use, but potentially all forms of art that rely on similar techniques.”

A long history of appropriation artists and copyright lawsuits

Andy Warhol certainly isn’t the only artist to have been brought to court for allegations of copyright violation or appropriation. Richard Prince, Jeff Koons, Shepard Fairey, Nadia Plesner, and Barbara Kruger have all been sued for copyright infringement with varying results.

This year, Ryder Ripps, the post-internet artist, was being sued by Yuga Labs, the parent company of the NFT collection Bored Ape Yacht Club, for a number of alleged violations related to his NFT collection RR/BAYC. For that collection, Ripps appropriated images from the BAYC collection in what he has described as a satrization of the collection and NFTs as a whole.

Perhaps the most famous recent such case involved American painter and photographer Richard Prince. In 2009, Prince was sued by French photographer Patrick Cariou for copyright infringement after his “Canal Zone” paintings incoporated photographs from Cariou’s 2000 book Yes, Rasta. In March 2011, a U.S. district judge ruled against Prince and ordered the defendant to destroy any unsold paintings that borrowed imagery from Cariou. That ruling was largely overturned on appeal a year later, apart from five paintings that were ordered to be reevaluated for claims of fair use.

At the time, NYU art law professor Amy Adler told Art in America that the decision was a major win for Prince.

“The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince’s testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work.”

The waffling between lower and higher courts over Prince’s paintings’ merit eventually came down to “whether a reasonable observer would find Prince’s works to have been transformative, and thus protected under fair use law. The question remains, who is a ‘reasonable observer,” New York attorney Sergio Muñoz Sarmiento told Art in America following the ruling. 

Kruger and her fellow appropriation artists may say that fair-use challenges are an inevitability of artmaking. Artists are obviously indebted to the innovations of their predecessors—that’s just art history—and many great entries were born somewhere between inspiration and appropriation. But is art historical merit a valid legal defense? 

The Andy Warhol Foundation for the Visual Arts has proposed one solution: art historians and other experts should have a say in cases where the aesthetic meaning of a work isn’t obvious to the naked eye. It was an argument similar to the one made by the Rauschenberg Foundation, which came out in support of Richard Prince during the lawsuit against him. 

But then there’s another question to consider: does an impartial art critic exist? 

“In the American legal system there is no ‘impartial expert.’ Each side introduces an expert and argues why his or her expert is the superior one,” Nicholas O’Donnell, an art lawyer and co-chair of the Art, Cultural Property and Heritage Law Committee of the International Bar Association, told ARTnews.

An art history issue or a licensing issue?

In O’Donnell’s view, Goldsmith v. Warhol comes down to “fundamentally a licensing issue.” Arguing about “transformation” misses the point.

“This dispute is about the Warhol Foundation decision to take someone’s money for a license in 2016, on Prince’s death,” he said. “Big newsworthy story, people are looking for images of Prince to use in magazines and there’s a direct displacement of Goldsmith by the licensing of Warhol’s silkscreen.”

Framed that way, the case is about markets and money, not meaning. 

So far, many dealing with the Warhol case have attempted to side step the question of merit. The Appellate Court, for example, looked not at Warhol’s artistic style but at the conditions of his works’ making to determine copyright violation. It pointed out that the photo had been licensed for one-time-use with credit to Goldsmith, that the photo was then used 15 more times without Goldsmith’s knowledge, that the series was then licensed by Vanity Fair to commemorate Prince’s passing, and that no credit was given to Goldsmith.

“They tried to take this art neutrality position that they’re not really here to make that judgment,” Gordon said of the Appellate Court’s decision. “The concern was that because Warhol is so well-known and so famous that that may affect the balance of whether he is making a new message or not.

“But if it’s an unknown artist with not much work, it would be harder for a court to decide if there is a new message or meaning,” Gordon continued. “There’s a concern that the person accused of infringement may make something up and courts aren’t positioned to make an accurate judgement.”

Source: www.artnews.com