Warhol Foundation v. Goldsmith

Another interesting case that did not fall on partisan lines. In this case, Andy Warhol, the hackiest artist in the history of hacks, finally faced the reality (or his foundation anyway) that him just ripping off other people’s images and changing the color or whatever actually can be a copyright violation and that just maybe the original artist is owed some money.

The Supreme Court ruled on Thursday that Andy Warhol was not entitled to draw on a prominent photographer’s portrait of Prince for a series of images of the musician, limiting the scope of the fair-use defense to copyright infringement in the realm of visual art.

The vote was 7 to 2. Justice Sonia Sotomayor, writing for the majority, said the photographer’s “original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

In dissent, Justice Elena Kagan, joined by Chief Justice John G. Roberts Jr., wrote that the decision “will stifle creativity of every sort.”

“It will impede new art and music and literature,” she wrote. “It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”

I dunno, if your art is just completely reliant on other people’s art, maybe you are just pushing bullshit. Which Warhol absolutely was doing. But hey, it was a good joke, right? Yep, art is capitalist! Let me now make an entire career of this banal insight.

But regardless what you think about Warhol, the point here seems fairly strong:

The portrait of Prince was taken by Lynn Goldsmith, a successful rock photographer. In 1984, around the time Prince released “Purple Rain,” Vanity Fair hired Warhol to create a work to accompany an article titled “Purple Fame.” The magazine paid Ms. Goldsmith $400 to license the portrait as an “artist reference,” agreeing to credit her and to use it only in connection with a single issue.

In a series of 16 images, Warhol altered the photograph in various ways, notably by cropping and coloring it to create what his foundation’s lawyers described as “a flat, impersonal, disembodied, masklike appearance.” Vanity Fair ran one of them.

Warhol died in 1987, and the Andy Warhol Foundation for the Visual Arts assumed ownership of his work. When Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the series for the cover. Ms. Goldsmith received no money or credit.

I mean, if I was Goldsmith, I’d probably feel ripped off too.

I make no claims to knowledge about copyright law. I have some thoughts about artistic merit like most people, but I am not going to pretend like they should be argued in the courts. But I can see where the other seven justices are coming from here.

Plus Andy Warhol sucks.