The Year in Review: Andy Warhol and a Year in Copyright

Never before had a dissenting opinion in the U.S. Supreme Court so closely resembled an art history paper. Francis Bacon, Giorgione, Édouard Manet, Titian, Diego Velázquez: work by all these artists was reproduced in Justice Elena Kagan’s scathing objection to the majority opinion in Andy Warhol Foundation for the Visual Arts v. Goldsmith, which ruled 7-2 that Andy Warhol’s estate had violated photographer Lynn Goldsmith’s copyright. Kagan cited these artistic precedents to emphasize that copying has historically been integral to artmaking, warning that the court’s landmark decision would ‘stifle creativity of every sort’, ‘impede new art’, and ‘make our world poorer.’

‘It will not impoverish our world to require the AWF to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work’, retorted Justice Sonia Sotomayor in the majority opinion. ‘Recall, payments like these are incentives for artists to create original works in the first place.’

AWF v. Goldsmith, which was decided this May, marked a rare instance of discussion of contemporary art in the highest court of a nation that often seems to care little for the subject, recent bumps in National Endowment for the Arts funding notwithstanding. As indicated by a number of anxious amicus briefs, AWF v. Goldsmith was closely watched by artists’ foundations, museums, art historians, art lawyers, and artists, particularly those who, like Warhol, use appropriation in their work or, like Goldsmith, rely on licensing their work to make a living.

In 1984, Goldsmith, then an up-and-coming rock photographer, licensed her photograph of the musician Prince to Vanity Fair for one-time use as an artist reference for Warhol, who had been commissioned to illustrate an article titled ‘Purple Fame.’ The artist used Goldsmith’s portrait as the basis for four works on paper and 12 silkscreen paintings; one featured in the article. Upon Prince’s death in 2016, Condé Nast licensed a different ‘Prince series’ silkscreen, Orange Prince (1984), from the Warhol Foundation to serve as the cover of a commemorative issue. Goldsmith was neither compensated nor credited. When she claimed copyright infringement, she was sued by the Warhol Foundation, which asserted that the work was protected under fair use. In 2019, a district court ruled in favour of the foundation; two years later, the ruling was overturned on appeal. Such reversals are not unusual for fair use cases, in which decision-making is notoriously subjective.

Fair use, a safeguard that weighs copyright against freedom of expression, is determined by a four-factor test. The first factor – the only one at play in AWF v. Goldsmith – examines the ‘purpose and character of the use’ of the new work compared to the original. Since the influential 1994 ruling in Campbell v. Acuff-Rose Music, this question has often hinged on whether a work is ‘transformative,’ adding a new meaning or message to the original rather than acting as a substitute.

Art law scholar Amy Adler has pointed out that the emphasis on transformative use has led judges to rely on shaky criteria such as the experience of a fictional ‘reasonable observer’ or the artist’s professed intentions. In the 2013 case Cariou v. Prince, the Second Circuit wielded transformative use to determine that Richard Prince had (mostly) not violated Patrick Cariou’s copyright in making paintings and collages that appropriated his photographs. ‘Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative’, read the decision. (Prince’s legal sagas are ongoing: this May, a federal judge ruled that two copyright infringement cases against him can proceed to trial.)

‘In Cariou, the Second Circuit judges became art critics’, Katie Wagner, the Executive Director of Volunteer Lawyers for the Arts, told me. ‘The district court in the Goldsmith case did the same thing; it claimed that her photograph captured Prince’s human vulnerability, whereas Warhol’s work turned Prince into an iconic figure. Transformative use is in the eye of the beholder.’

In AWF v. Goldsmith the Supreme Court in contrast deemphasized the importance of transformation; it asserted that the overlap in the commercial uses of Goldsmith’s photo and Orange Prince overrode the degree of transformation realized by Warhol. ‘Both are portraits of Prince used in magazines to illustrate stories about Prince’, the decision laid out flatly. Sotomayor included a reproduction of a Warhol Campbell’s Soup Can print to stress that, on that occasion, the artist did not violate copyright because he was not using his images to advertise soup. (When these images were used to advertise soup, papering limited-edition cans in 2012, Campbell sought a license from the Warhol Foundation.)

‘The slight saving grace in the Warhol case is that it was decided on fairly narrow grounds, focusing on the question of licensing’, art historian Martha Buskirk tells me. The Supreme Court, unlike the Second Circuit, zeroed in on the example licensed for the commemorative issue. To the relief of appropriation aficionados and Warhol fans, the decision explicitly states that it ‘expresses no opinion as to the creation, display, or sale of the original Prince Series works’ – several of which the Andy Warhol Museum pointedly put on view shortly after the ruling.

Yet, Buskirk notes, ‘because the decision emphasized the specific commercial transaction, rather than an assessment of the transformative nature of Warhol’s work, it raised the possibility that perceptions of a work’s transformative qualities might be shifted by downstream uses.’ If an artwork’s fair use status can change from context to context (so that a work is fair use when it hangs in a museum but not when it appears in a magazine, for example), or if the commercial use of a work could denude that piece of its fair use status (perhaps meaning that a work is no longer fair use because of its appearance in a magazine), the protections conferred by fair use become contingent – and copyright law becomes even more difficult to navigate for artists who can’t necessarily predict the future lives of their works.

Some critics of the ruling fear it may hamper artistic expression, despite its narrowness. Artists – including those without the means to pay licensing fees, much less battle costly lawsuits – are at risk of self-censorship if legal apprehensions guide their creative decision-making. ‘With these major cases, there’s always a fear that creativity will be chilled and artistic expression will be curtailed’, says art and copyright attorney Sergio Muñoz Sarmiento, though he adds that he has ‘yet to see it happen.’

As the case’s implications for fair use doctrine play out in the lower courts for years to come, its effects may well extend to the copyright can of worms that is generative AI. With the rise of text-to-image generators, artists are both using AI to make creative work and witnessing their own work being scraped by AI. Those seeking copyright for their own AI-generated artworks must contend with the U.S. Copyright Office’s new policy, published this March, asserting that only the ‘human-authored elements’ of a work are eligible for copyright, and that ‘the term “author” …excludes non-humans.’ On one hand, this framework may feel limiting, frustrating, or arbitrary to the growing number of artists who approach AI as a tool or collaborator and must now demonstrate that their work is ‘human-authored.’ On the other, opening the door to situations in which AI can hold copyright may be not only impractical (‘who shows up at court?’ Sarmiento asks) but also risky (what if AI produced and copyrighted images ad infinitum?).

Meanwhile, some artists – like the group who sued a trio of AI image generators for copyright infringement this January – are primarily concerned that their artwork is being taken without their consent to train AI and make derivative images. (A district judge threw out most of the claims but allowed one plaintiff’s suit against Stability AI to continue.) The AWF v. Goldsmith ruling suggests that the Supreme Court’s sympathies lie with those copyright holders who feel that they and their work have been exploited by those with more power, money, or privilege. But it’s unclear whether the decision would support the claim of tech companies that data scraping represents fair use, as the art is being ‘appropriated’ to train AI, a purpose that is conceivably distinct from the artist’s – or undercuts it, as the decision has minimized the ‘transformative use’ angle on which these companies have also relied. It is difficult to know where the chips will fall as judges and justices, neck-deep in murky waters, attempt to fulfil that cardinal goal of copyright: ‘to promote progress of science and the arts, without diminishing the incentive to create.’

_{Main image: Andy Warhol, 'Prince Series', undated, based on Lynn Goldsmith’s photograph of the musician. Courtesy: Supreme Court of the United States}