Andy Warhol’s Estate Loses Supreme Court Copyright Case
The Prince Pop Art Controversy

Black and white photograph of Andy Warhol holding a dog"Andy Warhol" by Jack Mitchell. Licensed under CC BY 2.0.
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It’s a thin line between creative expression and intellectual property. Andy Warhol, an artist celebrated for his iconic style and incorporation of popular culture, often treads this delicate line. However, recent developments in a copyright case surrounding Warhol's work have brought forth questions about transformative art, art reproduction, and the concept of ‘fair use’. This legal battle is not just capturing the attention of critics and historians but is also setting a potential precedent for future rulings. Yet, amidst the courtroom drama, one question lingers: What implications does this case hold for the art world?

Who’s Being Sued?

Lynn Goldsmith started her career photographing the most iconic faces of Rock-and-Roll, a proud accomplishment considering there weren’t a lot of women working in this field at the time. Over the course of her practice, her work has been featured in Time, Rolling Stone, the National Portrait Gallery, and the Museum of Modern Art. Among her roster of celebrities were Led Zeppelin, Bob Dylan, James Brown, and Prince.

Vanity Fair licensed one of Goldsmith’s photographs of Prince in 1984 to feature in a story about him. Lynn agreed for her photo to be used “one time only”. She received source credit and $400. It was to be used as an “artist reference for an illustration”. Vanity Fair hired Andy Warhol for the illustration, publishing his silkscreening of Goldsmith’s photograph. Beyond this initial project, Warhol continued to use Goldsmith’s image to recreate multiple works, one of which was licensed to Condé Nast for their tribute issue, The Genius of Prince, and earned Warhol $10,000. Goldsmith received nothing.

In 2016, After expressing her concern to the Andy Warhol Foundation (AWF) that they may have infringed on her copyright, the foundation sued her under “Fair use”. Goldsmith countered with “Infringement”.

An Overview of the Case

Considering the four factors of fair use, the District Court initially ruled in favour of Warhol as they considered his work met the criteria since it was “transformative” enough. However, the Court of Appeals for the Second Circuit reversed the ruling, arguing that the fair use laws were in favour of Lynn citing “the purpose and character of the use”, negating the idea that “any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative.”

“Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists. Such protection includes the right to prepare derivative works that transform the original.”
Justice Sonia Sotomayor

After years of litigation, on May 18, 2023, the Supreme Court ruled in favour of Goldsmith, stating that Warhol’s work was not considered transformative, and even if it were, it still would have violated the first factor of fair use, according to the majority seven to two vote.

In their own words,“Copyright law’s first fair-use factor—addressing “the purpose and character” of “the use made of a work”—is uninterested in the distinctiveness and newness of Warhol’s portrait. What matters under that factor, is instead a marketing decision: In the majority’s view, Warhol’s licensing of the silkscreen to a magazine precludes fair use.”

The ruling had polarising effects on the justices involved.

“The majority does not see it, and I mean that literally. There is precious little evidence in today’s opinion that the majority has actually looked at these images, much less that it has engaged with expert views of their aesthetics and meaning.”
Justice Elena Kagan

What could this mean for the Warhol Market?

For art enthusiasts and collectors, the potential consequences of lawsuits against Andy Warhol for reproducing or creating transformative art can have catalyse implications in his market. Warhol's work is highly regarded for its distinctive style and incorporation of popular culture figures, which has contributed to its value in the art market. However, if future legal challenges were successful in proving copyright infringement, it could raise questions about the authenticity and originality of his artistic practice.

Pop Art has roots in re-representation. Andy Warhol is known for his mass-produced silk screens featuring celebrities, everyday objects, and advertisements, and has built his entire career around this approach. Although the negative publicity may be undesirable for the Andy Warhol Foundation, this legal dispute serves as a reminder that the absence of appropriation would leave us without an entire art movement and the artist who has become synonymous with it.

Legal challenges against Warhol could spark a sense of solidarity among art enthusiasts and collectors who appreciate his groundbreaking contributions to the art world. They may view the lawsuits as stifling artistic freedom or as an attempt to impose rigid interpretations of copyright law that could potentially hinder creativity and transformative practices. Collectors may see owning Warhol's works as a way to preserve and promote the spirit of artistic innovation, challenging the notion of rigid copyright boundaries.

Appropriation in Art History

Appropriation, in the context of art history, is when artists incorporate pre-existing objects, images, or ideas from various sources into their own work, often with the intention of transforming or re-contextualising the original material. This practice has been a significant aspect of artistic expression throughout art history, spanning different movements, cultures, and time periods. By using existing materials, artists can engage in a dialogue with the past, challenge established norms, question the nature of originality, and create new meanings.

It carries both positive and negative implications for credibility and creative influence. On the one hand, it can be viewed as a way to pay homage to the works of other artists, fostering a sense of continuity and shared artistic heritage. It allows artists to build upon the ideas of others, pushing the boundaries of creativity and contributing to the evolution of artistic practices. Additionally, appropriation can serve as a powerful tool for critiquing societal norms, political systems, or cultural values, as well as exploring themes of identity. On the other hand, it can raise concerns about plagiarism, intellectual property rights, and cultural sensitivity. When an artist borrows from another artist’s work without proper acknowledgement or permission, it can lead to accusations of copying and undermine the credibility of the appropriating artist.

Artists like Andy Warhol have built a claim to fame largely attributed to his reproductions and transformative artworks. While this may be the first time we’ve seen an art copyright case get this much attention, the actual practice of modifying or even appropriating art for that matter, is quite an old practice that can be traced back to some of the Old Masters.

Titian’s Venus of Urbino. A nude woman lying on her bed with a dog. She has servants in the backgroundImage © Wikimedia Commons, Public domain / Venus of Urbino © Titian 1538
Edouard Manet’s Olympia. A nude woman laying on her bed, gazing directly into the eyes of the viewer. Beside her is her servant holding a pillow and her cat.Image © Musée d’Orsay / Olympia © Edouard Manet 1863

Edouard Manet and Titian

Over 300 years after Titian’s Venus of Urbino, Manet unveiled Olympia in 1863. Both works share a similar controversy surrounding the nudity of their subjects, though there are details and context that separate the works from each other. Does this recreation or interpretation make Manet any less worthy of his Old Master status? Or does it offer a supplemental teaching to art history in comparison to its predecessor?

Diego Velasquez’s Portrait of Innocent X. A seated pope dressed in papal attire holding a parchment in his hand."Portrait of Innocent X, Velasquez” by Flickr CC BY 2.0
Francis Bacon’s Study After Velázquez's Portrait Of Pope Innocent X. A distorted, haunting image of Pope Innocent XImage © The Estate of Francis Bacon / Study After Velázquez's Portrait Of Pope Innocent X © Francis Bacon 1953

Francis Bacon and Diego Velázquez

In the 17th century, Diego Velázquez created Portrait of Pope Innocent X, delivering a powerful depiction of the inner workings and key figures within the Vatican. Though this painting has a traditional, reverent nature to it, Francis Bacon introduced his “holy macabre” style, featuring Study After Velázquez's Portrait Of Pope Innocent X to forge a path for his subsequent works featuring pious men.

A brown, wooden mask from the Dan tribe of West Africa"Dan Deangle Mask” by Wikimedia Commons CC BY 2.0
Pablo Picasso’s Les Demoiselles d'Avignon. A Cubist composition of five women painted in hues of pink facing the viewer with backgrounds of muted red and blue.Image © The Museum of Modern Art / Les Demoiselles d'Avignon © Pablo Picasso 1907

Pablo Picasso and African Art

While he would deny their influence or inspiration, One of Picasso’s most notable works, Les Demoiselles d'Avignon, is favourable to the masks found throughout various tribal groups and subregions of Africa. The Dan tribe of the Ivory Coast were already masters of extracting and abstracting facial expressions through their masks before we come across Picasso’s take on them. Masks like these and Iberian sculptures were instrumental in the development of Cubism and the artist’s African-influenced period.

The Ruling’s Significance Moving Forward

As expressed by Justice Elena Kagam a ruling of this nature can have far-reaching implications for both the market and artists moving forward. By clarifying the boundaries of fair use and transformative art, the Supreme Court ruling provides guidance for artists and creators regarding copyright issues. This clarity enables artists to make more informed decisions when creating transformative works, ensuring they strike a balance between their artistic expression and legal obligations.

The ruling also serves as a catalyst for broader discussions on artistic freedom and the protection of intellectual property. It highlights the delicate tension between the rights of original copyright holders and the transformative nature of art. This dialogue can influence the way artists approach their work, encouraging them to be more mindful of the potential copyright implications and seek appropriate permissions or licences when necessary.

“It will impede new art, music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”
Justice Elena Kagan

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