make the Prince Series by Andy Warhol infringement of celebrity photographer Lynn Goldsmith’s copyright? This question is central to the conflict between Godsmith and Warhol’s heirs (1928-1987), united in the Warhol Foundation. The matter is now before the United States Supreme Court, the highest court in the United States. The outcome is of great importance to artists and the creative sector in the United States.
The case originated in 1984, when the magazine Vanity Fair when the number appears purple rain wanted to publish an article about Prince. The magazine received permission from Lynn Goldsmith to use a photo of Prince for the illustration. Vanity Fair then asked Warhol to make a portrait based on this photo. And so the article was published, with a purple print of Prince. Goldsmith was neatly listed as the creator of the photo.
What Goldsmith did not know, however, is that Warhol produced an additional fifteen screen prints in other colors. Only in 2016, when Vanity Fair after Prince’s death another portrait from the Prince Series on the cover, Goldsmith understood that Warhol hadn’t stopped with one screen print. The photographer then accused the Warhol Foundation of infringing its copyright on the photo.
The discussion revolves around the question of whether Warhol’s editing of the Prince photo can be called ‘transformative’. A work is transformative if it adds something essentially new, giving the work a different character or meaning. In that case, there may be so-called ‘fair use’ under American law, and it is permitted.
In 2021, the US Court of Justice ruled in favor of Goldsmith. The judges ruled that the Prince Series van Warhol does not add enough news to the photo. “The series retains the essential elements of the Goldsmith photo without adding or changing anything significant to those elements,” the verdict said. Goldsmith’s photo remains “the recognizable foundation upon which the Prince series is built.” Moreover, according to the court, it is not for the judge to delve into Warhol’s intentions or the alleged intentions that art critics see in them.
The ruling not only puts a bomb under much of Warhol’s work, but also under that of all other so-called ‘appropriation artists’: artists who use photos and images of others for their work. That is why the Warhol Foundation took the case to the highest US court for a ruling in principle. They will have to indicate how exactly you should explain the term ‘transformative’.
Either way, the ruling will have far-reaching consequences for the creative world in the United States. If the Supreme Court, like the judge in 2021, sets the bar high for ‘appropriation artists’, it will severely restrict these artists in the future in their freedom to use and build on other people’s work in their artworks. . Earlier, in a high-profile case in 2013, the US judge ruled that the work of artist Richard Prince, consisting of a collage of photos by photographer Patrick Cariou, added sufficient new elements and should be regarded as ‘fair use’.
But the ruling will also have an impact outside the US, says lawyer Marcel de Zwaan, who represents many artists. ‘Building on someone else’s work or using it in any other way, with the exception of parody and quote, is not legally regulated in the EU in the form of a ‘fair use’ principle. In the Netherlands we have something very similar: a form of self-regulation in a guideline for so-called art borrowing, introduced by the image rights organization Pictoright.’
According to De Zwaan, the difficulty of ‘fair use’ is not the acceptance of the possibility of reuse. ‘You have to determine where the boundary lies between inadmissible parasitization and the creation of ‘a fundamentally new artistic meaning’. And how do you determine that limit? In the Warhol procedure, the space for commercially very successful ‘re-users’ such as Andy Warhol, Jeff Koons and Richard Prince seems to be shrinking considerably.’
Andy Warhol realized in the 1960s that he regularly played with fire. At the time, he clashed with photographer Patricia Caulfield over using one of her photos in the artwork flowers. The case was settled and Warhol paid Caulfield for the use of her photo. During the same period, photographers Charles Moore and Fred Ward also fought Warhol when it emerged that Warhol had used photographs of them by Jacky Kennedy for his work. The matter was then settled by mutual agreement.
The Supreme Court ruling is expected in the course of 2023.