Warhol, Prince and a Case of Vanity Perhaps Not-So-Fair: Even Fine Art Colossuses Need Inspiration
What could be more flattering than arguably the greatest pop fine artist of all time copying your work?
Well fine art photographer, Lynn Goldsmith, apparently wasn’t all too flattered when she saw Andy Warhol’s ‘Prince Series’ (of the singer, once known as “The Artist Formerly Known As Prince” or that symbol…, not Richard Prince, the photographer (although his Re-photography, as one reads on, would quite coincidentally be very much in point here) of silkscreen paintings, screen prints on paper, and drawings, cast a striking resemblance to her own Prince 1981 New York studio shoot, where she took eleven photographs of the artist formerly known As the Artist Formerly Known as Prince.
Goldsmith didn’t edition the photographs, but her agency apparently licensed one of the black and white images to Vanity Fair Magazine for use as an artist’s reference. The Magazine commissioned Warhol to produce an illustration of Prince for its “Purple Fame” article in its November 1984 edition, which Warhol did, in color, and which became one of the Prince Series.
Goldsmith said she had no idea that the image was licensed as an artist‘s reference and apparently first became aware of the use when, long after Warhol had passed, Vanity fair published an online version of the “Purple Fame” article following Prince’s death, and, its parent, Conde Nast took a commercial license in an image from the Prince Series from The Andy Warhol Foundation for the Visual Arts (AWF- the owner of the rights following Warhol’s death in 1987) for the cover of the “Genius of Prince” a commemorative magazine published in May 2016.
By this time twelve of the Prince Series had been sold on auction or otherwise, and AWF gifted the remaining four to the Andy Warhol Museum in Pittsburgh, Pennsylvania. Works in the Prince Series had also been published or displayed in museums, magazines and elsewhere since the date of the original Vanity Fair publication.
Goldsmith then contacted AWF alleging infringement of her Prince photograph. AWF anticipated, and filed suit in the Southern District of New York seeking a declaratory judgment that none of the sixteen pieces in the Prince Series infringed Goldsmith’s copyright in her Prince photograph. Goldsmith cross-sued claiming that the Warhol works did infringe, and both sought summary judgment as the case ensued.
AWF’s contention was that even if Warhol copied the Goldsmith image (which AWF did not admit), the fine art works in the Prince Series were not substantially similar, bearing the trademark Warhol silkscreen veneer, and, furthermore, the works were protected by the doctrine of ‘fair use’.
The court, even though reaffirming that photographs are generally creative works capable of copyright protection, essentially held that Goldsmith had to go beyond showing that her photograph was merely copied. She had to show that the copying was unlawful because there was a “substantial similarity” between the Warhol works and her photograph; in other words that the ordinary person would recognize that the infringing work (Warhol) was appropriated from the original work (Goldsmith).
The court declined to address the ‘substantial similarity’ element directly, by instead siding with AWF on ‘fair use’. For the court, Warhol’s use of the photograph as an artistic reference, fell squarely within the ‘fair use’ doctrine, a statutory exception to copyright infringement.
In reaching this decision, it pointed to “..[t]he four factors identified by Congress as especially relevant in determining whether the use was fair…: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole;…[and]… (4) the effect on the potential market for or value of the copyrighted work.” The “critical question”, it said, in deciding fair use, is “…whether copyright law’s goal of promot [ing] the Progress of Science and useful Arts would be better served by allowing the use than by preventing it ”.
In considering fair use doctrine first factor, the court relied heavily on the “transformative nature” of the work of fine art. This involves deciding “…whether the new work merely supersede[s] the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…”, there being no requirement here that the alleged infinging work of fine art comment on the original work or its author.
Here the court in essence went full circle and indirectly addressed the ‘substantial similarity’ element in this context. For the court, the Warhol works, with their distinctive Warhol look, feel and gloss resulted in an “…aesthetic and character different from the original “. Whereas Goldsmith’s photograph revealed Prince’s vulnerability and shyness, Warhol’s works are bolder, accentuating Prince’s facial features (the unprotectable part of photographic imagery) and iconic status. After all, the court felt that Warhol’s works were immediately recognizable as “Warhols”, the pop-rendition of famous personalities, rather than “…realistic photographs of those persons “.
The court, on similar terms, and relying for the most part on the transformative nature of the work and the potential public and artistic deprivation in finding infringement, decided the second and third factors in AWF’s favor, too.
On the last factor, there was little evidence from Goldsmith that the Warhol works eroded her Prince photograph market. For the court, the market for ‘Warhols’ is the market for Warhols, the fine art colossus. Distinct to the license market for photographs, which, as the court pointed out Goldsmith had not really entered with the Prince studio images, despite the licensing of the single image.
But with this last factor, one can’t help but wonder whether the market for the Goldsmith images could only be enhanced given Warhol’s alleged copying. After all, it is, as Sir Isaac Newton once famously said, “ If I have seen further than others, it is by standing upon the shoulders of giants”.
This is the very nature of creativity, without which the world would be deprived. And if Warhol is standing on her shoulders, then, as one would say, this should be the ultimate form of flattery.
By some accounts, Goldsmith is considering an appeal.
