Considerations of Copyright and First Amendment Rights in Appropriation Art

by Jana Farmer on September 30, 2022

Case study of The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith litigation.

There is a consensus that Andy Warhol originated the saying, “Art is anything you can get away with.” However, further research shows that Warhol may have borrowed that quote from Canada’s media theory philosopher Marshall McLuhan.

This year, the United States Supreme Court will address the question, as some may be tempted to say, of exactly what Andy Warhol can get away with when it decides whether Warhol’s use of Lynn Goldsmith’s photograph of the American singer-songwriter Prince Rogers Nelson (Prince) in his silkscreen Prince Series was transformative and therefore not an infringement on Goldsmith’s copyright. More sinister potential implications of this forthcoming decision of the High Court are (1) who should decide on the merits and meaning of works of art, and (2) what prior restraints on artistic speech are the courts now comfortable with?

In late 2018 to early 2019, the Whitney Museum organized the first Warhol retrospective in a U.S. institution since 1989. The curatorial introduction to the retrospective noted: “Few American artists are as ever-present and instantly recognizable as Andy Warhol (1928–1987). Through his carefully cultivated persona and willingness to experiment with nontraditional art-making techniques, Warhol understood the growing power of images in contemporary life and helped to expand the role of the artist in society.”

One of the key aspects of Warhol’s artistic practice was his exploration of the silkscreen technique starting in 1962. It is a process that involves developing stencils from an original image, mixing custom inks and then forcing the ink through a silkscreen onto canvas or paper below to create the print. While stenciling and silkscreen printing can be traced through the ages as far back as 9000 BCE, Warhol and several other American POP artists in the 1960s began making brightly colored “fine art” screen prints, called “serigraphs” to distinguish fine art from commercial screen printing. Warhol’s practice also involved painting over the printed impression, using the image outline as a rough guide.

The Debate
Warhol frequently used images of public figures from mass media or of everyday objects presented passively in a manner that effaces the author’s voice in his artworks. Critical debate over Warhol’s art centers on whether it subversively comments on mass culture, consumerism and commodification of the power of an image, or whether he simply and cynically exploits somebody else’s work commercially. While Warhol denied a larger meaning behind his work, he was nonetheless quite successful in controlling how his work is interpreted, evoking a fascination with the inexplicable. And clearly, Warhol has been an immensely successful and influential artist, as evidenced by the presence of his works in the collections of top museums and the many contemporary artists referencing his style.

The practice of artistic appropriation of preexisting imagery has been widely used throughout history. Édouard Manet’s Olympia references Titian’s Venus of Urbino, which in turn recalls the Sleeping Venus of Giorgione, Titian’s mentor. Picasso made more than 26 versions of Manet’s The Luncheon on the Grass, which is very similar to the grouping seen in the engraving by Marcantonio Raimondi after Raphael’s painting Judgment of Paris. Appropriation is a popular practice in contemporary art, with many artists including Deborah Kass and Elaine Sturtevant repurposing Warhol’s style, or even creating exact replication of his work while imbuing it with new meaning.

Yet, when it comes to contemporary U.S. appropriation art, there exists an ever-present tension between the constitutionally guaranteed freedom of speech and a copyright holder’s time-limited monopoly on a specific form of expression. An artwork can qualify as fair use in several situations defined in the Copyright Act of 1976. As fair use inquiries must be case-specific, litigation often follows. But many of these disputes settle out of court. Artists Richard Prince and Jeff Koons have been frequent targets of copyright infringement lawsuits, and Warhol and his Foundation have been defendants in several.

High Court Considers Fair Use of Creative Works
The Andy Warhol Foundation v. Goldsmith case now gives the Supreme Court of the United States an opportunity to take up the issue of fair use and transformative use as it applies to fine art. This will be the first time since the 1994 decision in the “Oh, Pretty Woman” case, Campbell v. Acuff-Rose Music, Inc., that the Supreme Court will consider fair use in the context of a creative work.

Lynn Goldsmith is a world-renowned celebrity and fashion photographer known for her portraits of rock musicians, including Michael Jackson, Madonna, the Beatles and the Rolling Stones. Her photographs have been exhibited in museums from the Smithsonian National Portrait Gallery to the Brooklyn Museum of Art. She is a recipient of a 2021 Lucie Award, which honors the greatest achievements in photography.

In 1981, Goldsmith was commissioned to photograph the musician Prince for Newsweek, and retained copyright in her work. Goldsmith – seeking to create a relatable portrait of an icon as a human being – recounts that she arranged the lighting to photograph Prince’s “chiseled bone structure”; compiled a playlist of music designed to make Prince comfortable and build rapport; and applied makeup on Prince highlighting the feminine side of his persona.

In 1984, after the release of Prince’s legendary “Purple Rain” album, Goldsmith licensed to Vanity Fair the right to use one of her black-and-white photographs of Prince from the 1981 photoshoot for the purpose of creating an illustration that Vanity Fair was commissioning for the article “Purple Fame.” Unbeknownst to Goldsmith, Warhol created the illustration for Vanity Fair. Further, he used Goldsmith’s photograph to create 15 additional works using the silkscreen process, known as his Prince Series. Most of these works were sold after Warhol’s death by the Andy Warhol Foundation, and four reside in the collection of the Andy Warhol Museum in Pittsburgh, Pennsylvania. Use of the images from the Prince Series is licensed by the Foundation to publishers, galleries and museums.

Goldsmith claims that she first discovered the infringement after Prince’s death in 2016, when Condé Nast, Vanity Fair’s parent company, licensed the use of one of the Prince Series images for a Vanity Fair tribute issue. As a fashion and celebrity photographer who followed Prince’s work, it is difficult to believe that Goldsmith was truly unware of the extensive exhibits and sales of the Prince Series images in the decades between 1984 and 2015. Goldsmith asserted her claims pre-litigation to the Foundation directly. It was the Foundation that commenced a declaratory judgment action against Goldsmith and her company, seeking a declaration that the Prince Series did not infringe Goldsmith’s copyright or that the Prince Series was fair use. Goldsmith counterclaimed for copyright infringement and injunctive relief.

Lower Court Findings
The U.S. District Court for the Southern District of New York granted summary judgment to the Foundation, finding that the balance of the four fair use factors favored the Foundation. As to the first fair-use factor, the District Court determined Warhol’s work to be per se transformative because “the secondary work has a different character, a new expression, and employs new aesthetics with creative and communicative results.”

This first factor, transformative use, has been said to be synonymous with fair use in its entirety, given the significant weight the courts give to this factor. The court continued its analysis and determined that the second factor, “the nature of the copyrighted work,” favored neither party. The third factor, “the amount and substantiality of the portion use,” favored the Foundation because Warhol altered Goldsmith’s image, despite copying the pose and the angle of the head. As to the fourth factor, “effect on the potential market for and value of” the original work, the court deemed that the Foundation’s licensing activity did not act as a market substitute for Goldsmith’s photographs.

On Appeal to the Second Circuit
The United States Court of Appeals for the Second Circuit reversed on appeal, finding the four fair use factors to be either neutral or in Goldsmith’s favor. The appellate court focused on visual similarity of the works and the fact that both were “created as works of visual art” and are “portraits of the same person.” The Second Circuit refused to “seek to ascertain the intent behind or meaning of the works at issue” contrary to the Supreme Court in Campbell holding that courts must view a work as transformative if it adds a new “meaning or message.” Even though the Second Circuit began by acknowledging that judges should not be art critics, it proceeded to make its own aesthetic judgment based on side-by-side comparison, rejecting context and the views of art market experts. This decision is disturbing as it upsets the existing balance in the art market, exposing to litigation and potential liability a significant number of contemporary artworks.

Restraints on Art as Speech under the First Amendment?
The Second Circuit decision also appears to conflict the First Amendment right of free speech. Judge Pierre Leval noted in his essay, Campbell as Fair Use Blueprint? that “fair use serves as the First Amendment’s agent within the framework of copyright.” Fair use allows speakers and listeners to engage in dialogue over preexisting copyrighted works and to share their views about these works with others. By rejecting consideration of the meaning behind Warhol’s work, the Second Circuit essentially denies artists and their viewers the opportunity to engage in a dialogue over existing art by referencing prior art.

Conclusion
The Supreme Court will hear the Warhol case during its October 2022 term. The decision will, of course, have far-reaching consequences on artists, photographers and those who incorporate the works other others into the content they create. Beyond that – as Art Newspaper’s Virginia Rutledge aptly put it in a recent article, “The stakes of a copyright case being heard by the U.S. Supreme Court go way beyond Andy Warhol.” – the High Court is expected to pronounce on the relevance and legal value of the opinions of artists, collectors, gallerists, curators, historians, critics, educators and museum administrators and on the permissible scope of restraints on art as speech under the First Amendment. If visual similarity between artworks is all that the court can consider, this practically means that the opinions of art experts on the cultural and historical significance of the works at issue do not matter.

The Supreme Court has long rejected the existence of conflict between copyright and free speech, noting that “the Framers intended copyright itself to be the engine of free expression.” If the High Court decides that meaning behind visually similar artworks need not be considered, such a holding will serve to restrict freedom of expression that references prior art.

This article first appeared as a Wilson Elser INSIGHT in June 2022.