In this episode: A Photographer Accused Andy Warhol of Copyright Infringement and the Court Agrees
Full podcast transcript
Hey everybody Keith Dotson here and in this episode, we’ll talk about the copyright battle between photographer Lynn Goldsmith and the Andy Warhol Foundation over a portrait of Prince
This week, a US Federal Appeals court ruled in favor of photographer Lynn Goldsmith, who claimed that Warhol used one of her photographs without authorization. A lower court had previously ruled against her. In this case, whether or not Warhol had used her photograph as source material was never in dispute. What was in question was whether Warhol’s characteristic silkscreened look had sufficiently transformed Goldsmith’s work to the point where her copyright was no longer valid because it was a transformative new work.
The fact that a lower court ruled against the photographer is concerning — and illustrates the precarious position of artists whose work is being judged on its merits by the courts. The Appeals court warned courts against the temptation to use their benches to judge the merits of art. The Associated Press quoted the ruling like this:
“It cautioned against judges making ‘inherently subjective’ aesthetic judgments, saying they ‘should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.’ ” (AP)
Here’s a brief background on the case. Goldsmith shot a black and white studio portrait of Prince in 1981. In 1984 she was paid to license the photograph for use on a magazine cover — but it was licensed as source material for Andy Warhol to use to make the cover art in his own distinctive style.
Warhol did indeed create the cover illustration as agreed, but then went on to make a total of 16 portraits of Prince in various color schemes using Goldsmith’s photograph — you can picture them — they’re in the same vein as his Marilyn Monroe, Chairman Mao, and other famous celebrity portraits.
Goldsmith claims she never knew about those other works of art until Prince died and the Andy Warhol Foundation licensed the other portraits for use in a magazine article about him. She was understandably upset — Warhol Foundation had earned income based on her photograph, but ironically, it was the Warhol Foundation who initiated the suit, believing that the fame of Warhol and the power of his highly-recognizable style would inoculate them against any copyright concerns. Essentially, they claimed it was a case of “fair use” under copyright law.
The district judge in an earlier ruling concluded that Warhol quote “transformed a picture of a vulnerable and uncomfortable Prince into an artwork that made the singer an “iconic, larger-than-life figure.” — end quote and again that’s from the AP.
The appeals court reversed that ruling, saying that it would create a situation where high-profile celebrity artists could have carte-blanche to plagiarize the work of other artists because their very style would be transformative.
Ironically, the lower court had ruled against Goldsmith based on precedent from a controversial 2013 decision by the very same Appeals Court that just ruled in her favor this week. In 2013’s Cariou v. Prince (and that’s a different Prince than the singer), the Appeals Court decided in favor of artist Richard Prince, saying his work using source material by photographer Patrick Cariou was transformative. Richard Prince is notorious for appropriating imagery from other artists — he has even exhibited huge enlargements of Instagram posts made by other people without their permission. He even sold these enlarged screen shots from Instagram for $100,000 each. (Verge)
I’ll include a link to an article about that in the write-up. To me, Richard Prince is a blatant plagiarist, but the court ruled otherwise in 2013.
In this new case, the Appeals court used the example of books made into films. Often the completed film is significantly different from the original book, yet copyright still applies to the source material — the book.
The costs of fighting a battle like this are significant — enough to scare mere mortal artists or photographers. In a 2019 article on ArtNet about her loss in the lower court, Goldsmith said she had spent $400,000 in legal bills to that point, and projected the case would cost her $2.5 million overall. She said she’d taken out loans and started a GoFundMe to help pay the bills.
Goldsmith hasn’t made any claims against the ownership of the 16 Warhol Prince portraits.
The Andy Warhol Foundation has vowed to challenge the latest ruling so the fight will continue.
That’s all I’ve got for this episode. Thanks for listening. I’ll talk to you again real soon.
AP. “US court sides with photographer in fight over Warhol art.” Larry Neumeister. March 26, 2021.
Artnet. “The Andy Warhol Foundation Has Won Out Against a Photographer Who Claimed the Pop Artist Pilfered Her Portrait of Prince.” Sarah Cascone. July 2, 2019.
The Art Newspaper. “US appeals court rules that Warhol’s reliance on a photographer’s portrait image did not constitute ‘fair use’.” Laura Gilbert. March 29, 2021.
The Verge. “The story of Richard Prince and his $100,000 Instagram art.” Lizzie Plaugic. May 30, 2015.
Wikipedia. “Cariou v. Prince.“