Does Warhol’s “Orange Prince” portrait violate the copyright of photographer Lynn Goldsmith, whose black and white portrait of Prince was used as the foundation of the Warhol artwork? Or is Warhol’s distinctive style and treatment transformative, making it a substantively new work imbued with a different meaning and intent? The Supreme Court has heard oral arguments in the case.
Full episode transcript
In this episode, an update on the Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith copyright case, which is at the Supreme Court.
Welcome back to the Fine Art Photography Podcast. In this episode, I’ll discuss the supreme court oral arguments in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.
First two caveats here: one — I’m not an attorney. I’m a photographer; and two — as a photographer who occasionally licenses work, I naturally support Lynn Goldsmith in this case.
As a brief recap of the history here, Lynn Goldsmith is a photographer who is well-known for her celebrity photography. She was paid a fee by Vanity Fair magazine in 1984 for a one-time license to provide a head-and-shoulders photograph of Prince as a basis for Andy Warhol to create a magazine illustration for Vanity Fair. NPR reported that Vanity Fair signed a document promising to reproduce the photograph only once in the magazine.
Unbeknownst to Goldsmith, Warhol (who may not have known about the licensing agreement) created a whole series of 16 variously colored portraits from the photograph, one of which was later — and without a new license or any permission at all from the photographer — used by a Conde Nast tribute publication after Prince’s untimely death. Keep in mind Warhol died in 1987, so this case involves the Warhol Foundation.
The suit challenges the Warhol Foundation’s claim that the Warhol works were fair use because they were transformative and that they owed Goldsmith no further payments. Furthermore, Warhol copyrighted the 16 Prince paintings and they have been reproduced and sold as prints by the Warhol Foundation.
A federal appeals court heard the case, and decided on behalf of Goldsmith — which I happen to think was the correct decision.
I listened to the entirety of both sides’ oral arguments before the Supreme Court, which included a friend of the court brief from the U.S. Government on behalf of Goldsmith, the photographer, regarding copyright law.
While generally, to me, it seemed the justices were dubious of the arguments put forth by the Warhol Foundation that the Warhol painting was transformative and in effect, a new work that is better and more endowed with meaning than the original, I personally found many of the discussions odd.
There was a lot of talk about whether Warhol infused the portrait with additional emotion and meaning that the photograph did not contain. In some of the lines of argument, the Goldsmith photograph seemed to be relegated as a lesser form of art, while the Warhol was more valuable and meaningful.
The entire line of argument about whether justices should try to interpret the meaning and intent of art was misguided in my opinion. More valid would have been to evaluate the transformative nature of the derivative piece. In other words, it would have been transformative — at least in my mind — if you could no longer recognize the Goldsmith photograph in the final art. If the photograph had been part of a collage, perhaps disassembled and then reassembled with other elements so as to be no longer recognizable, that would have been transformative.
The Warhol Foundation claimed that the original black and white Goldsmith photograph made the young Prince look vulnerable, whereas the Warhol painting transformed him into someone who looked iconic. Simply adding color and making a few minor edits like removing the torso or altering the angle of the face is not transformative — but again I’m not a lawyer or a judge, so what do I know?
But, that was also the judgment of the Second Circuit, which ruled in favor of Goldsmith, saying that judges were unsuited to make aesthetic judgments or to try to interpret the intent of an artist in making a work of art. They also said — rightfully — that the Warhol piece was clearly derived from Goldsmith’s photograph and that it “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements.”
In trying to decide whether this was a case of fair use under copyright law, there was discussion whether the photo was necessary or essential to the final art — the point being that a work can’t be claimed for fair use simply because it’s more convenient than creating an original work. This line of conversation made no sense to my non-legal mind. Warhol could have taken his own photograph in 1984, but he used the Goldsmith photograph, and then proceeded to make unauthorized copies for the color variations. The rest of the variations were held in Warhol’s private collection until his death. While I personally do not consider the application of color to the existing image as transformative or particularly meaningful, I do consider the Goldsmith photo as crucial — without it there would be no Warhol portrait. To me, that makes it all the more important that she be paid and considered as a co-author of the Warhol silk screen painting.
An important point to remember, and this was discussed during the oral arguments, is that this entire case is about the commercial use of the work — not about art for display in a gallery or museum. Fine art tends to get wide latitude in the courts — but this case revolves around commercial use of the images. In this case, the Goldsmith photograph could have been licensed to appear in the article about the death of Prince, so the Warhol painting actually competed against Goldsmith’s photograph in a commercial market and decreased her ability to earn income from her own creative product. That’s the crux of this case.
The Warhol Foundation argued that restricting the use of the Goldsmith photograph would result in a chilling effect — an overall damper on creativity and limit to innovation, to which I say bullshit. The justices tried to find comparisons in the examples of music and book-to-film adaptations, which only highlighted how uncomfortable they were analyzing visual art, but to me, creativity isn’t reduced when a copyright holder is duly compensated for their original art — in fact just the opposite. To me it’s quite simple, pay the copyright holder if you want to use their work — or go make your own original source material.
The implication for photographers if Goldsmith loses the case, is that any photograph could potentially be used without payment or permission under a fair use claim, as long as it has been modified with a resulting image that can be called “transformative” — a vague term that is wide open to interpretation, as the justice’s so aptly demonstrated during oral arguments.
The verdict on Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith isn’t expected until next year.
That’s all I’ve got for this episode. Thanks for listening. I’ll talk to you again real soon.