A dispute over the pop artist’s source material has reached the US Supreme Court – its outcome could have dramatic consequences for the modern art world
Yesterday, it was announced that two of Andy Warhol’s earliest artworks – including what’s been labelled his first ever self-portrait – are set to fetch as much as $950,000 when they go to auction at Phillips New York next month. Is this an insane amount of money for paintings by a 20-year-old art student who was yet to carve out his niche? Maybe. But it’s also a testament to Warhol’s enduring fame, and a reminder of his journey to pop art superstardom.
A slightly less glamorous reminder of the life behind Warhol’s art is the years-long lawsuit between the Andy Warhol Foundation for the Visual Arts and the photographer Lynn Goldsmith. Revolving around a portrait of Prince that Goldsmith shot in 1981, which Warhol repurposed for a 1984 Vanity Fair issue, the lawsuit has been going on for years.
Next week, though, the case will finally be argued in the US Supreme Court, following a series of appeals and escalations. It isn’t just about Goldsmith or Warhol, either. Depending on the result, the case could have implications for a range of “fair use” cases across the art world.
Below, we’ve gathered all the info you need to keep up to date with the landmark copyright case.
WHAT DID WARHOL DO?
In 1984 – almost 40 years after Warhol’s art school escapades – Vanity Fair commissioned the leading artist to create an illustration of an emerging musician “known as Prince”. Warhol, of course, obliged. Using a cropped section of a 1981 shot by photographer Lynn Goldsmith, he created what would become a series of 15 images, including silkscreen paintings, drawings, and prints, that were sold off in their own right. Reportedly, Goldsmith only discovered that these images existed when they were republished online by Vanity Fair in 2016, in the wake of Prince’s death.
SO WHAT’S THE PROBLEM?
Apparently, Vanity Fair originally paid Goldsmith $400 for a licence to use her Prince portrait as a reference image for an illustration to appear in its November issue, before Warhol was hired, but “no other usage” was authorised. When Goldsmith discovered the images, she learned that the Andy Warhol Foundation (AWF) had licensed one of Warhol’s additional works to Condé Nast for more than $10,000 – a fee that she argues belongs to her.
Goldsmith and the AWF failed to resolve the issue “amicably” and, in 2017, the foundation filed a preemptive lawsuit that asked the court to confirm that the Prince series wasn’t in violation of Goldsmith’s copyright protections.
WHY HAS THE DISPUTE GONE ON SO LONG?
Over the last five years, the legal battle between Goldsmith and the AWF has seen wins and losses for both sides. Back in 2019, a judge ruled in favour of Andy Warhol in Manhattan. Warhol had transformed the musician from a “vulnerable, uncomfortable person” into “an iconic, larger-than-life figure”, the judge stated, saying that this transformation was sufficient for the series to count as original works.
In 2021, however, judge Gerard E. Lynch reversed the fair use ruling, labelling the justification an “error” as “the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue”. To create a work that isn’t derivative, Lynch added, requires “something more than the imposition of another artist’s style on the primary work”.
Responding to the ruling, an AWF lawyer shot back: “Over fifty years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th century.”
WHY DOES IT MATTER?
According to Warhol’s legal team, the outcome of the 2021 ruling “casts a cloud of legal uncertainty over an entire genre of visual art”. Of course, this kind of controversy is nothing new among art fans – the line between inspiration and appropriation is infamously hard to navigate. However, it will be interesting to see what kind of knock-on effect a new legal precedent would have on current-day artists continuing Warhol’s legacy. After all, the likes of Jeff Koons and Richard Prince have similarly run into no shortage of trouble for their appropriative artworks.
WHAT WILL HAPPEN NEXT?
From October 12, lawyers will make their cases in the US Supreme Court, seeking to determine the rules that will define whether Andy Warhol’s artwork is deemed transformative or infringes on Goldsmith’s copyright. The main question that will come up is whether courts can take a work’s “meaning or message” into consideration, something that judge Lynch – remember him? – previously argued against.
The AWF says that the previous ruling focused too much on visual similarities, instead of artistic intent. If Lynch’s decision is allowed to stand, it adds, then this would restrict the freedoms of artists using appropriation as part of their process, and damage creative expression. Galleries or institutions that exhibit artworks that are a grey area regarding copyright protections may also be dissuaded from showing them to the public.
Goldsmith, on the other hand, says that the ruling in her favour provides a vital protection for the creators of original artworks, citing the loss of her own licensing fee for the Vanity Fair artworks. “Artists, critics, and the public often disagree about what art signifies,” she adds, arguing that ambiguities like this open up the ‘meaning or message’ test to manipulation.
Now that the case has reached the highest court in the nation, maybe we’ll finally get some definitive conclusions.