In this episode of the Fine Art Photography Podcast, we discuss Andy Warhol’s practice of using the photographs of other photographers without permission, and the legal trouble it caused him and his estate
Full episode transcript
In this episode, Warhol’s Marilyn portrait sells for a record price, but it’s made from a photograph he didn’t shoot
Hey everybody, welcome back to another episode of the Fine Art Photography Podcast. You may have heard in the news headlines that Andy Warhol’s 1962 40-inch square silkscreen on canvas portrait of Marilyn Monroe just sold at auction for a record-breaking $195-million! That makes it the most expensive piece of 20th Century Art ever sold, and the second most expensive of all time.
The vividly colored portrait shows a black, screen-printed portrait of Marilyn — broken into a dot pattern like an old black and white newspaper photo — overlaid with blocks of flat color. Warhol made numerous versions of Marilyn, and this one is called “Shot Sage Blue Marilyn,” because the background is a pale blue. Her hair is bright yellow, her skin very pink, her lips deep red, and her eyelids also pale blue. The iconic portrait is signature Warhol, and according to Christie’s the auction house that sold the art, it’s the pinnacle of Pop Art. It’s called the Shot Sage Blue Marilyn, because it was one of the stack of Warhol canvases that were shot with a bullet by another artist who marched into Warhol’s studio with a gun in an act of “performance art.”
But Warhol did not make the original photograph of Marilyn that’s at the heart of the iconic painting.
The original photograph used by Warhol was taken by a man named Eugene Kornman, who went by the professional name “Gene Korman.” Korman worked for the publicity department at 20th Century Fox. His photo of Marilyn was made as part of the advertising campaign for the 1953 movie Niagara.
The website LightMonkey makes the point that Korman’s photograph of Marilyn is not particularly artistic. It’s a workaday glamor-style portrait, shot in the style required by the studios for publicity photographs at the time. LightMonkey also notes that it’s not a portrait of Marilyn. It’s a picture of Norma Jean, in the guise of Marilyn Monroe, within the role of her character in the movie Niagara. Her facial expression, her hairstyle, and her costume are in character. To emphasize the artless nature of the publicity still, Light Monkey includes another portrait of Marilyn by Richard Avedon, and I have to say, the contrast is stark.
The point of this discussion of the original photograph, and it’s artlessness — is leading me to another Warhol work. According to The Columbia Journal of Law and the Arts, Warhol did not own the copyright of the original Gene Korman photograph, and he did not use it with permission. In the case of the Korman photo, many experts have considered Warhol’s use as transformative. In other words, it’s been transformed to the point that it’s different than the original enough that it’s not a copyright infringement.
Warhol also did not have permission to use the Campbell’s soup packaging in his iconic images of their soup cans, although according to the Columbia Journal site, the company allowed the appropriation of their trademarked and copyrighted property because it was good publicity. The company even sent Warhol several cases of their tomato soup in 1964. (Quora)
Warhol was sued several times for appropriating the works of other photographers. At least three separate cases were settled out of court.
But there’s still an active lawsuit against the late Warhol in the courts — in fact, it’s gone all the way to the U.S. Supreme Court.
In 1984, Warhol made a series of 16 variously colored portraits of the late singer Prince. Those works were based on a 1981 photograph of the singer by Lynn Goldsmith. The question, of course, was Warhol’s work transformative enough that it’s considered fair use? As you can imagine, the business of deciding how transformative is enough is a tricky business. Lower courts have ruled in both directions.
In this case, the Lynn Goldsmith photograph was legally licensed as a reference for one-time use to Warhol, who had been commissioned to create cover art for Vanity Fair magazine. The conflict arises from the fact that Warhol made more than one piece of art as specified in the original agreement.
After Prince’s death in 2016, Vanity Fair ran a story about him, featuring the other works by Warhol, Goldsmith said she was surprised to recognize her photograph in the magazine illustrations.
As photographers, especially anyone who works commercially, or in my case as a so-called fine art photographer who does occasionally license my work for limited use, this case matters.
The courts have a spotty record on this matter. Some of the cases have ended with controversy, not always in favor of the photographer, even in some cases that seem like straightforward cases of infringement to me.
Currently, the two sides are in the process of filing briefs and petitions, and i haven’t seen a specific date for the presentation of arguments before the Supreme Court.
That’s all I’ve got for this episode. Thanks for listening. I’ll talk to you again real soon.
Links and Sources
Artnet: “The U.S. Supreme Court Will Decide Whether Andy Warhol Violated a Photographer’s Copyright by Using Her Image of Prince Without Permission”
Light Monkey: “Who Shot Marilyn?”
The Columbia Journal of Law and the Arts: “Andy The Appropriator: The Copyright Battles You Won’t Hear About at The Whitney’s Warhol Exhibit”