Legendary pop artist Andy Warhol’s silkscreens based on a trailblazing photographer’s images of Prince are not fair use, the Supreme Court overwhelmingly found in a ruling sure to shake up the contemporary art world.
The 7-2 decision reshapes a decades-old understanding of “transformative” use central to much modern and contemporary art, and it inspired a furious dissent finding the majority’s view inconsistent with “Art History 101.”
For rock photographer Lynn Goldsmith, the opinion represents a long-awaited victory.
More than half a decade after she sent an infringement notification to the Andy Warhol Foundation in 2017, the nation’s highest court ruled in her favor. Two justices believe that the consequences of that decision will be dire.
‘The goal of copyright’
When Vanity Fair commissioned Goldsmith’s photograph for an article on Prince, the magazine did not inform her that Warhol would be separately commissioned to turn that image into a silkscreen. Goldsmith also did not know that the Pop artist would make 15 works based on that image that would become known as his “Prince Series.” She said that she learned of the series after Prince’s death in 2016.
The Supreme Court noted that Vanity Fair paid Goldsmith $400 as the creator of the “source photograph.” Warhol created 15 works of art from it, and his foundation licensed one of those works to Conde Nast for $10,000.
“Goldsmith received nothing,” the ruling notes.
Supreme Court Justice Sonia Sotomayor, joined by all of her peers except for Justice Elena Kagan and Chief Justice John Roberts, found that to be an injustice. Sotomayor noted that Warhol could have, but did not, license Goldsmith’s work in creating the “Prince Series.”
“In fact, Warhol himself paid to license photographs for some of his artistic renditions,” Sotomayor wrote. “Such licenses, for photographs or derivatives of them, are how photographers like Goldsmith make a living. They provide an economic incentive to create original works, which is the goal of copyright.”
From his iconic Campbell’s Soup print, Warhol has been known to riff on commercial or pop cultural images in his art. Sotomayor, however, distinguished the soup can from the Prince images.
“The purpose of Campbell’s logo is to advertise soup,” the ruling states. “Warhol’s canvases do not share that purpose. Rather, the Soup Cans series uses Campbell’s copyrighted work for an artistic commentary on consumerism, a purpose that is orthogonal to advertising soup.”
‘In a word, transformed’
Justice Kagan skewered her colleagues’ view that Warhol’s work here wasn’t “transformative.”
“Still more, the Court decides that even if Warhol’s portrait were transformative — even if its expression and meaning were worlds away from the photo — that fact would not matter,” the dissent states.
For Kagan and Roberts, the majority’s holding conflicts with the most superficial understanding of art history.
“You’ve probably heard of Andy Warhol; you’ve probably seen his art,” the dissent says. “You know that he reframed and reformulated — in a word, transformed — images created first by others. Campbell’s soup cans and Brillo boxes. Photos of celebrity icons: Marilyn, Elvis, Jackie, Liz — and, as most relevant here, Prince. That’s how Warhol earned his conspicuous place in every college’s Art History 101.”
The dissent faulted the majority’s “lack of appreciation” for how Warhol’s works differ from their originals.
“For, let’s be honest, artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others,” Kagan continues. “That is the way artistry of all kinds—visual, musical, literary — happens (as it is the way knowledge and invention generally develop).”
For Kagan, the majority reduced Warhol to an “Instagram filter, and a simple one at that,” such as sepia-tinting.
“Ignoring reams of expert evidence — explaining, as every art historian could explain, exactly what the fuss is about — the majority plants itself firmly in the ‘I could paint that’ school of art criticism,” the justice writes.
The dissent also invokes a host of literary, artistic, and pop-cultural references, including Shakespeare, Mark Twain, Samuel Johnson, Irving Berlin, Richard Rogers, and many others, reifying the justices’ points about the historical exchange of ideas. This, Kagan writes scathingly, stands in stark contrast to the majority’s view of “commercialism-über-alles.” It also questions whether Titian or Manet’s reclining nudes would survive the fair use analysis set aside Giorgione’s “Sleeping Venus,” created circa 1510.
Warning that the ruling will “make our world poorer,” Kagan asks: “If Warhol does not get credit for transformative copying, who will?”
Read the ruling and dissent here.
Have a tip we should know? [email protected]