Comparison of the lines on the subject’s face in Lynn Goldsmith’s Prince photograph and Andy Warhol’s Prince series (via The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al, 2017)

When Andy Warhol decided to use an unpublished photograph of Prince for a series of silkscreen portraits, did he actually create a new work of art? That was the question that animated nearly two hours of debate this morning at the Supreme Court in what is being widely followed as one of the most consequential legal battles over the ownership of images in the visual arts world.

“If you called Andy Warhol as a witness, what would he say was the purpose, message, or meaning of his creations?” a contemplative Justice Samuel Alito quizzed a lawyer for the Andy Warhol Foundation early into the hearing. The foundation’s lawyer, Roman Martinez, deferred speaking directly about Warhol’s intentions with the screenprints he made repeatedly until his death in 1987. But earlier, Martinez told Alito that the answer was right in front of him: “I think you could just look at the two works and figure out what you think, as a judge,” the lawyer said.

One of those works was a screenprint Warhol made in the last decade of his life, initially as a commission from Vanity Fair for a 1984 story on the rise of Prince. It had been a year since the breakthrough success of the singer’s Little Red Corvette record and the magazine wanted to use Warhol’s recognizable visual style to illustrate its conviction that Prince “has arrived.” 

To make the image, Warhol was sent a portrait of Prince made a few years earlier by a photographer named Lynn Goldsmith. Vanity Fair had paid Goldsmith $400 to let the magazine use the image — after it had been rejected years earlier by editors at Newsweek — as an “artist reference” for the illustration Vanity Fair now wanted to commission from Warhol, who later went on to make 15 other prints and drawings based on that photograph before his death. 

This was not uncommon for Warhol. While his first screenprints were made from his own sketches, his most popular ones are those he made using photographs of popular celebrities, like the still of Marilyn Monroe from the largely forgotten 1953 movie Niagara that he turned into one of the most well-known images of the actress. When Prince died in 2016, Vanity Fair then paid the foundation to use Warhol’s image again, this time for the cover of an issue of the magazine devoted to Prince’s legacy. 

After seeing the images show up on newsstands, Goldsmith tried to convince the foundation to pay her for Warhol’s adaptation of her photograph — which turned into a lawsuit that has been ongoing, in various federal courts, since 2017. 

At the crux of that debate is the question of whether Warhol’s visual style changed the meaning of the photograph Goldsmith shot. If it did, then Warhol’s use of the image could be covered by “fair use,” a legal doctrine that lets artists use an artwork in order to make a different one — what is known as a “transformative” purpose. 

Article “Purple Fame” in the November 1984 issue of Vanity Fair (via The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420, 2021)

In legal filings, Goldsmith’s lawyers argued that much of the image’s striking qualities were the results of choices she had made, not Warhol. Goldsmith had, for instance, “applied purple eyeshadow and lip gloss to Prince in order to connect with him and to accentuate his sensuality,” they noted.

In taking on the case, the justices appeared visibly interested in seeing how, exactly, lawyers defined what made something a work of art. In the spirit, perhaps, of Marcel Duchamp’s infamous 1919 readymade “L.H.O.O.Q.” — an image of the Mona Lisa with a mustache — Alito asked if simply adding a smile to Prince’s face in either work would change its message in any significant way. 

“Say this is a new message. The message is, ‘Prince can be happy. Prince should be happy.’ Is that enough of a transformation?” Alito posed during oral arguments today. 

Other justices had their own hobbyhorses: Clarence Thomas, who gave a commencement address at Syracuse University shortly before getting nominated to the Supreme Court, asked if changing “the colors a little bit around the edges” in Warhol’s print in order to make the image appear to endorse Syracuse’s sports teams would be covered by fair use, or would result in a lawsuit from the Warhol Foundation. The Biden administration, which has come out in favor of Goldsmith’s case against the Foundation, argued in legal filings that Warhol’s silkscreens shouldn’t be treated differently from books that are creatively adapted into movies, a position argued that afternoon by a Department of Justice lawyer named Yaira Dubin.

Online, observers appeared rankled by these attempts to explicitly put artistic ideas into digestible boxes. Sarah Burstein, a law professor at Suffolk Law School who focuses on design, tweeted: “Who wants a symposium essay on art that was unfairly maligned today in the Warhol argument?”

Cathay Smith, a professor at the University of Montana’s Blewett School of Law, told Hyperallergic in an email that she was concerned the decision “might dramatically change the copyright fair use landscape, including artistic practices.”

“If Andy Warhol’s work — which many likely viewed as paradigmatic examples of transformative fair uses in visual art — is no longer considered fair use, it could send a chilling message for rising and current artists whose work rely on pre-existing materials and works of art,” Smith said.

An amicus brief cites comparative examples by contemporary artists. (screenshot Andrew Karpan/Hyperallergic)

Much of the art world has lined up behind the Warhol Foundation, which Warhol had set up shortly before his death to market reproductions of his works, and which doles out millions of dollars every year to artists in the form of grants. The conceptual artist Barbara Kruger, who has herself reproduced photographs of Warhol in her own work, endorsed a legal brief aimed at the justices that argued Warhol’s work was part of a larger tradition of creative imitation that “has been and continues to be a key component of European and American art.” Briefs from Kruger and others point to the long legacy of Édouard Manet’s 1863 painting “Le Déjeuner sur l’herbe,” which both “imitated key elements” of a 16th-century Marcantonio Raimondi engraving and was later directly imitated by modern painters like Robert Colescott and Mickalene Thomas

In another brief, endorsed by Kruger as well as artists including Leslie Hewitt, Darren Bader, Liz Linden, Jill Magid, and Sara Greenberger Rafferty, lawyers supporting the Warhol Foundation argue that fair use animates Kruger’s work. 

“Kruger’s technique retains its identity regardless of size or medium, it lends itself to easy reuse by others. Rather than fight against that, she has incorporated these appropriations into her own artmaking,” they say. 

Other major names in the art space have made similar arguments — the Brooklyn Museum cosigned a related brief, joined by the estates of Robert Rauschenberg and Roy Lichtenstein. Lawyers for a group that runs cosplay conventions for fans of David Weber’s Honor Harrington books put forward their own brief arguing that “fan communities do not present economic or intellectual threats to rights-owners.” 

It remains to be seen where the judges will come down on the issue, which will mark the first time the highest court in the United States delivers an opinion on what is and is not a work of art since 1994, in a notable ruling that was the first to establish that parodies can qualify for fair use protections. The court is expected to hand down a decision in this case sometime before the end of next June.

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Andrew Karpan

Andrew Karpan is based in New York and writes about art, culture and, sometimes, the law. Find him on Twitter.

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