In 1981, rock 'n' roll photographer Lynn Goldsmith, who has worked with Michael Jackson, Bob Dylan, the Beatles and many others, stepped into her studio with the artist then known as Prince, put some purple eyeshadow and lip gloss on him to "accentuate his sensuality," and began shooting pictures with her Nikon 35mm camera.
Three years later, Vanity Fair licensed one of the black-and-white photos from Goldsmith for $400 and hired Andy Warhol to create an illustration from it for one-time use in the November 1984 issue of the magazine. Warhol did his artistic magic with the photo and Vanity Fair ran it. Goldsmith received a small credit as the photographer.
While he was at it, though, Warhol created a series of 15 other illustrated portraits from the photo, mostly silkscreen images (like the ones he'd previously made of Jackie Kennedy and Marilyn Monroe), which have subsequently been sold, licensed and displayed as Warhol's own work. For these, Goldsmith got no credit or fee, even though her photo was the basis for the portraits.
Today it's been 41 years since the photo was taken and 37 since Warhol reworked it. Prince is dead, Warhol is dead and Goldsmith is in her 70s. But a battle continues over whether Warhol infringed Goldsmith's copyright or whether he used the photo legally under copyright law's "fair use" doctrine to create the portraits.
The Supreme Court will hear arguments in the case on Oct. 12.
Among the underlying issues are these: What are the limits of appropriation and imitation in art? And how much must a preexisting work be transformed before a new artist can claim it as their own?
In short: Is this his work or hers? It looks like a Warhol, but is it?
Unsurprisingly, the two sides disagree on how substantially Goldsmith's original photo was changed.
According to the Andy Warhol Foundation for the Visual Arts, Warhol "cropped the image to remove Prince's torso, resized it, altered the angle of Prince's face." He changed the "tones, lighting and detail" and "added layers of bright and unnatural colors, conspicuous hand-drawn outlines and line screens, and stark black shading that exaggerated Prince's features."
Goldsmith's lawyers point out that the angle of Prince's gaze remains unchanged, as do the dark bangs hanging over his right eye. Shadows still ring his eyes and darken his chin, as in the photo. The "light and shadows on his lips" reflect the lip gloss, and the reflections from Goldsmith's photo umbrellas in Prince's eyes are still visible.
In the end, I come down on Warhol's side. But it's not an easy call. And it's about more than just whether the Warhol portraits look a lot or a little like the original photo.
At the heart of the dispute are two conflicting goals in copyright law. On one hand, society wants to protect the rights of copyright holders such as Goldsmith and ensure they're incentivized and rewarded for their creative work. On the other, the law also includes "fair use" provisions, to provide "breathing space" for artists like Warhol to use preexisting works to convey ideas without fearing they're infringing on copyright protections.
Fair use rules, which have roots going back to the 1700s, make it legal to use copyrighted material without penalty and without permission under certain circumstances. One consideration is whether the new work is "transformative" — whether it adds something new, "altering the first with a new expression, meaning or message."
After all, artists have used one another's work for centuries.
"Artists routinely replicate each other's work to comment on what art is or should be, on how art should function and on culture and history more generally," said artists Barbara Kruger and Robert Storr in an amicus brief in the case.
They noted that Edouard Manet's avant-garde painting "Le Dejeuner sur l'herbe" imitated Marcantonio Raimondi's engraving, "The Judgment of Paris," which was itself a reference to a work by Raphael. Monet and Cezanne did later versions, as have other artists.
Kruger and Storr also cited Marcel Duchamp's doctored version of the "Mona Lisa," in which the artist penciled a mustache onto a postcard image of Da Vinci's masterpiece.
"His very light modifications … transform an iconic and respectable work into something clownish and subversive," wrote Kruger and Storr.
Another amicus brief argues that Brahms borrowed from Beethoven, and T.S. Eliot from Dante.
No artist borrowed more than Warhol, who regularly used photographs of celebrities and familiar consumer products in his work. Most famous are his Campbell's soup cans.
Few would bother to argue these days that Warhol's paintings of 32 red-and-white soup varieties are mundane depictions of labeled cans. Though they depict an ordinary, everyday product (including Campbell's trademarked logo), they are clearly transformative works of art.
The current case probably wouldn't be at the Supreme Court except that the U.S. 2nd Circuit Court of Appeals surprised some observers by reversing a lower court and ruling for Goldsmith.
Among other things, the court held that it is not enough for an artist to put his or her own "style" on the new work for it to be transformative if it retains the "essential elements of its source material."
If so, that would probably be bad news for Duchamp.
These are complicated issues. Of course there's a certain unfairness in letting Warhol use Goldsmith's work — in which she invested time and talent — as if it were his own. And not all imitations or appropriations should be protected by fair use. Furthermore, determining the "meaning or message" of art is unquestionably difficult.
But fair use exists for good reason. Goldsmith's right to a fee and her understandable irritation that her work was used without credit are outweighed, in my view, by the importance of allowing artists like Warhol the freedom to comment on and build on the work of others, whether through imitation, mimicry, enhancement or ridicule.
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