Andy Warhol violated copyright. U.S. Supreme Court vs. the great artist

A U.S. Supreme Court ruling, more than a year overdue, could change the fate of contemporary art. The ruling is on a case involving some of Andy Warhol’s works, and the dispute dates back to 2016, when photographer Lynn Goldsmith, who specializes in portraits of musicians, sued the Warhol Foundation: that year, in fact, from a special on Prince published in Vanity Fair, Goldsmith learned that Andy Warhol had executed some works (sixteen in all) depicting Prince using as a basis a photograph by Goldsmith, which the father of Pop Art had altered in coloir and cut. In the first instance, the Manhattan district court, as we explained in Finestre Sull’Arte, had agreed with the Warhol Foundation, ruling that "each work in the Prince series is immediately recognizable as a Warhol rather than a photograph of Prince, in the same way that Warhol’s famous depictions of Marilyn Monroe and Mao are recognizable as Warhol and not as realistic photographs of those people."

However, the appellate court overturned the ruling: in fact, Judge Gerard Lynch ruled that the district judge should not “assume the role of an art critic and attempt to ascertain the intent or meaning of the works in question. This is true both because judges are usually ill-suited to make aesthetic judgments and because such perceptions are inherently subjective.” The judge’s task, according to Lynch, would be to assess whether Warhol’s work could constitute a derivative work by preserving “the essential elements of Goldsmith’s photograph without significantly adding or altering them.”

The Supreme Court’s pronouncement confirms the Court of Appeals’ line. According to the highest U.S. court, in fact, Warhol infringed copyright by intervening on the photograph that Lynn Goldsmith had taken in 1981. Seven judges voted in favor of Goldsmith, while two judges agreed with the Warhol Foundation. The majority opinion, verbalized by Justice Sonia Sotomayor, states that “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, including with respect to famous artists. This protection includes the right to create derivative works that transform the original. However, the use of a copyrighted work can be corrected if, among other things, the use has a purpose and character sufficiently distinct from the original. In this case, however, Goldsmith’s photograph of Prince and Andy Warhol Foundation’s use of the photograph in an image licensed to a special edition magazine devoted to Prince share substantially the same commercial purpose. Andy Warhol Foundation has offered no other persuasive justification for its unauthorized use of the photograph.” Rejected, then, was the foundation’s argument that it intended to rely on the concept of fair use, which allows copyrighted works to be freely used to express critical or informational rights, for educational or research purposes, or for “transformative” uses of the protected work if it is transformed to express something different and new than the original. The Supreme Court, however, rejected this argument, recognizing that every copy of an original adds something; if anything, the question is what is the extent of novelty. The court gives the example of the celebrated Campbell’s soup can, one of Warhol’s most famous works, which finds its originality in its critical and parodic intentions: intentions that were not found by the court in the series dedicated to Prince, which was used, according to the court, for purposes not so different from those of Lynn Goldsmith’s photograph. And in the context of the Vanity Fair publication, the Supreme Court ruled, the use of the image is essentially identical to that of Goldsmith’s photograph: both are works used in magazines to illustrate stories about Prince.

The ruling also quotes the minority opinion, delivered by Justice Elena Kagan (who was joined by Supreme Court Chief Justice John Roberts): In the opinion, which cites famous instances of “transformative” works from the past (such as Titian’s Venus of Urbino reprising Giorgione’s Sleeping Venus , or Francis Bacon’s famous Portrait of Innocent X based on thesimilar work by Diego Velázquez), we read that "the majority treats creativity as an insignificant part of the fair use inquiry, in disregard of established principles of copyright law and what they reflect on the artistic process." And it is precisely the consequences for creativity that Kagan and Roberts worry about, since this ruling could irreparably limit it: if you cannot cite prior works within your own because you risk copyright infringement, so many artists will give up their creations. “If Warhol doesn’t get credit for transformative copying, who will?” the minority judges wonder. “And when artists less famous than Warhol cannot benefit from fair use, it will count even more. Goldsmith would probably have licensed Warhol with few conditions and for a price well within his budget. But [...] licensors sometimes impose strict limits on subsequent uses, especially to prevent types of expression they disapprove of. And licensors may charge fees that prevent many or most artists from accessing original works. Of course, this is perfectly fine if an artist simply wants to copy the original and market it as his or her own. Preventing such uses-and thus incentivizing the creation of original works-is what copyrights are for. But when the artist wants to make transformative use of it, a different issue arises. By now, the reason should be obvious. Inhibiting [...] artists from improving previous works, as most do today, will frustrate the very ends sought” by copyright law. It will stifle creativity of all kinds. It will hinder new art, music and literature. It will hinder the expression of new ideas and the attainment of new knowledge. It will make our world poorer."

Pictured is Lynn Goldsmith’s photograph and portrait of Andy Warhol

Andy Warhol violated copyright. U.S. Supreme Court vs. the great artist

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