On May 18, the Supreme Court made a strange decision. On the one hand, he said the licensing of a screen-printed image from the Andy Warhol Foundation to the Condé Nast magazine chain violated the copyright of photographer Lynn Goldsmith in her photo of rock musician Prince – a photo on which Andy Warhol had based his screen-printed image. But on the other hand, the Court said that the initial creation of the screen print by Warhol could have been “fair use” and therefore not copyright infringement. How is it possible ? One minute, a work of art may be fair use, but the next minute, if you license it to a magazine, it’s not.
What was really going on to explain this paradoxical result? Read beyond the legal intricacies of Judge Sonia Sotomayor’s opinion for the Court in Andy Warhol Foundation for the Visual Arts vs. Goldsmith, one can discern sympathy for Goldsmith, the working journalist, and resentment towards the Warhol Foundation, with its aura of glamor and privilege in the art world. Sympathy and resentment are easy to understand, but they led the majority of seven members of the Court into a legal quagmire and a disastrously flawed result.
To explain: Andy Warhol was one of the most famous artists of the 20th century, and the Andy Warhol Foundation inherited his very expensive and high-level body of art. Lynn Goldsmith is a photojournalist who works to make a living by selling and licensing her celebrity photos. Sotomayor’s opinion emphasizes inequality.
In 1984, as Sotomayor recounts, vanity lounge paid Goldsmith $400 for a one-time license to use his Prince photo. The magazine then commissioned Andy Warhol to transform Goldsmith’s photo into his signature style of reformatting, screen-printing in often garish colors, and then painting over the screen-printed print. Warhol then made a “Prince series” of 14 prints and two drawings, all variants of the Goldsmith picture. In 2016, after Prince’s death, Condé Nast donated $10,000 to the Warhol Foundation to reproduce an image from the Prince series. Goldsmith was not warned and got nothing. Sotomayor’s opinion mentions it three times, reminding readers that licensing is “how photographers like Goldsmith make a living.”
Meanwhile, the Warhol Foundation wasn’t exactly short of funds. It wouldn’t have hurt to give Goldsmith some of that $10,000, one would think, in fairness. Indeed, not only is Goldsmith the underdog, but she’s also an admirable person — “an entrepreneur,” notes Sotomayor, who became “a leading rock photographer” at a time “when women on the scene were widely dismissed as groupies” (quoting a review from a Goldsmith photobook).
The Warhol Foundation, on the other hand, is guilty of super-rich art world hubris, or so Sotomayor implies. She accuses Judge Elena Kagan, who wrote an impassioned dissent, of arguing for fair use based on “one fact: ‘He’s a Warhol’.” Goldsmith’s works are entitled to copyright protection “even against famous artists”, notes Sotomayor; there is no “celebrity-plagiarist privilege” in copyright law.
Obviously, the vote of sympathy goes to Goldsmith.
But here’s the problem. If Warhol’s Prince series were “transformative” enough — to use the term that frequently warrants a fair use defense — then the works in the Prince series are fair use, not copyright infringement. If it’s not copyright infringement, then they’re independent creative works that can be used as the artist sees fit. They do not cease to be fair use and turn into an illegal copy because their creator sells or licenses them for profit. At least they shouldn’t. Sotomayor’s approach to fair use makes everything uncertain in the art world where appropriation and transformation are common practices that have endured for centuries.
Losing fair use status when a work is used commercially means losing it for most purposes that matter to artists, as Justice Kagan’s dissent points out. Not to mention that it would be (and will be, according to the Court’s decision) a practical nightmare trying to figure out when a transformative new work that does not infringe suddenly becomes infringing because of the way it is displayed, sold or licensed for reproduction.
The defense of fair use under copyright law consists of four factors, only the first of which was at issue in this case: “the purpose and character” of Warhol’s use of the photograph of Goldsmith. The Warhol Foundation (and Kagan disagree) argued that the character of Warhol’s screen-printed images was clearly transformative, both stylistically and in terms of meaning. Sotomayor twisted this question of “purpose and character” to focus not on Warhol’s work, an impression of the Prince series, but on a specific use of it: magazine licensing. The Court “expresses no opinion”, she said, “on the creation, display or sale of any of the original works in the Prince series”, which may well be fair use. A concurring opinion by Judge Neil Gorsuch agreed that under the first factor of fair use, the display of Warhol serigraphs “in a non-profit museum or a for-profit book commenting on 20e the art of the century…may well indicate fair use.
So now, obviously, artists, dealers, curators, collectors, and everyone else in the art world have to guess on a case-by-case basis whether a creative work that started out as fair use will lose that defense under copyright law depending on how it is shown, sold or marketed. And of course, if licensing a work like Warhol’s screenprinted image is copyright infringement, it’s not just about paying the original photographer a share of the licensing fee. Goldsmith now has the right, as the copyright holder, to refuse permission to license Warhol’s Prince images, ie to remove them from the market. It’s a radical outcome for art, and not just for the world’s well-heeled Warhol foundations.
Unfortunately, sympathy votes sometimes make very bad laws.
Marjorie Heins is a First Amendment lawyer and former director of the ACLU’s Arts Censorship Project. His books include Not in front of children: indecency, censorship and the innocence of youth.
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