Nicholas Goldberg: The Supreme Court will decide if Andy Warhol broke the law, 37 years after the fact

In 1981, rock ‘n’ roll photographer Lynn Goldsmith, who has worked with Michael Jackson, Bob Dylan, the Beatles and many others, walked into her studio with the artist then known as Prince to apply purple eyeshadow and lip gloss to him, “emphasizing his sensuality ‘ and started taking pictures with her Nikon 35mm camera.

Three years later, Vanity Fair licensed one of Goldsmith’s black-and-white photos for $400 and commissioned Andy Warhol to create an illustration for one-off use in the magazine’s November 1984 issue. Warhol worked his artistic magic on the photo and Vanity Fair published it. As a photographer, Goldsmith received a small loan.

While he was at it, Warhol created a series of 15 other illustrated portraits from the photograph, mostly silkscreen images (like those he had previously done of Jackie Kennedy and Marilyn Monroe), which were subsequently sold, licensed and exhibited as Warhol’s own work. Goldsmith received no recognition or payment for this, although her photo was the basis for the portraits.

Stipple style portrait illustration by Nicholas Goldberg

opinion columnist

Nicholas Goldberg

Nicholas Goldberg was the editorial page editor for 11 years and is a former editor of the Op-Ed page and the Sunday Opinion column.

Today it is 41 years since the photo was taken and 37 since Warhol revised it. Prince is dead, Warhol is dead, and Goldsmith is in her 70s. But controversy persists over whether Warhol violated Goldsmith’s copyright or whether he used the photo legally under the copyright law’s “fair use” doctrine to create the portraits.

The Supreme Court will hear arguments in the case on October 12.

The underlying questions include: What are the limits of appropriation and imitation in art? And how much does an existing work need to be transformed before a new artist can claim it?

In short: is this his work or hers? It looks like a Warhol, but is it?

Not surprisingly, both sides agree on how much Goldsmith’s original photo was altered.

According to the Andy Warhol Foundation for the Visual Arts, Warhol “cropped the image to remove Prince’s torso, resized it, changed the angle of Prince’s face.” He changed the “tones, lighting and detail” and “added layers of light and unnatural colors, bold hand-drawn outlines and line screens, and heavy black shading that exaggerated Prince’s features.”

Goldsmith’s attorneys point out that Prince’s angle of view remains unchanged, as do the dark bangs that hang over his right eye. Shadows still surround his eyes and darken his chin, as in the photo. The “light and shadows on his lips” reflect the lip gloss, and the reflections from Goldsmith’s photo umbrellas in Prince’s eyes are still visible.

In the end I’m on Warhol’s side. But it’s not an easy call. And it’s about more than just whether the Warhol portraits look very or little like the original photograph.

At the heart of the dispute are two conflicting goals in copyright law. On the one hand, society wants to protect the rights of copyright owners like Goldsmith and ensure that they are incentivized and rewarded for their creative work. On the other hand, the law also includes “fair use” provisions to give artists like Warhol “breathing space” to use existing works to convey ideas without fear of copyright infringement.

Fair use rules, which have roots going back to the 17th century, make it legal to use copyrighted material without penalty and, under certain circumstances, without permission. One consideration is whether the new work is “transformative”—whether it adds something new, “changing the first with a new expression, meaning, or message.”

After all, artists have used each other’s work for centuries.

“Artists routinely reproduce each other’s work to comment on what art is or should be, how art should function, and more broadly on culture and history,” artists Barbara Kruger and Robert Storr said in an amicus brief on the case.

They noted that Edouard Manet’s avant-garde painting, Le Dejeuner sur l’herbe, imitated Marcantonio Raimondi’s engraving, The Judgment of Paris, itself an allusion to a work by Raphael. Monet and Cezanne made later versions, as did other artists.

Kruger and Storr also cited Marcel Duchamp’s manipulated version of the “Mona Lisa,” in which the artist penciled a mustache onto a postcard image of Da Vinci’s masterpiece.

“Its very slight modifications … transform an iconic and respectable work into something clownish and subversive,” Kruger and Storr wrote.

Another amicus letter argues that Brahms borrowed from Beethoven and TS Eliot from Dante.

No artist borrowed more than Warhol, who regularly uses photographs of celebrities and well-known consumer goods in his work. Best known are his Campbell’s soup cans.

Few today would bother to argue that Warhol’s paintings of 32 Red and White Soups are mundane depictions of labeled cans. Although they represent an ordinary, everyday product (including Campbell’s trademarked logo), they are clearly transformative works of art.

The current case would probably not go to the Supreme Court, except that the US 2nd Circuit of Appeals surprised some observers by overturning a lower court, ruling in Goldsmith’s favour.

Among other things, the court ruled that retaining the “essential elements of its source material” is not enough for an artist to give the new work their own “style” for it to be transformative.

If so, that would probably be bad news for Duchamp.

These are complicated matters. Of course, there is a certain unfairness in using Warhol Goldsmith’s work—in which she invested time and talent—as if it were his own. And not all imitations or appropriations should be protected by fair use. Furthermore, it is undoubtedly difficult to determine the “meaning or message” of art.

But fair use exists for a good reason. Goldsmith’s right to a fee and her understandable annoyance that her work was used without attribution is outweighed, in my view, by the importance of giving artists like Warhol the freedom to comment on and build on the work of others, be it through it Imitation, imitation, improvement or mockery.

@Nick_Goldberg Nicholas Goldberg: The Supreme Court will decide if Andy Warhol broke the law, 37 years after the fact

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