By Ariana Ceballos
Andy Warhol, the popular pop artist known for his famous print of the Campbell Soup Can, has entered the media spotlight once again––this time in a Supreme Court case. The case is between the Andy Warhol Foundation and Lynn Goldsmith, established photographer for rock and pop stars, in which Lynn is suing the foundation for copyright infringement. What is emerging from this case is possibly an alteration in the constitutional freedom of expression and replication.
Roman Martinez, lawyer to the Andy Warhol Foundation summarizes the impact of the case, stating how “…museums, galleries, and collectors will be liable for infringement if they show or sell the works, or any works with appropriated elements in dispute.” Greg Allen for ARTnews adds to Martinez’s argument saying that “such a decision would have a suppressive effect” on “many spheres of digital and social media that have been constructed on the existing legal framework for creating and reusing content,” falling into fair use. Based on recent decisions made by the Supreme Court, this case will definitely have a lasting effect that will define how individuals are allowed to express themselves in the future— especially artists.
The artwork at the forefront of the suit is a photograph taken by Lynn Goldsmith of the late artist Prince. Her image of Prince was for a shoot Goldsmith was commissioned for by Newsweek, but was not included in the spread, although the image was later used by Vanity Fair. Nina Totenberg for NPR adds that the image served to guide the artist Andy Warhol in his commission from the magazine to complete illustrations of the singer.
In the exchange between the photographer and magazine, the magazine paid Goldsmith “$400 in licensing fees and promised in writing to use the image only in this one Vanity Fair issue.” It was not until Prince’s death that Goldsmith was made aware of the silk screen prints made by Warhol through a tribute spread by the magazine. The Warhol Foundation was essentially able to profit from an image that was not to be used a second time. Totenberg notes, however, that there was no evidence that Warhol knew about the licensing agreement, and hence, went forward with copyrighting his set of 16 Prince silkscreens.
Goldsmith argued that Andy Warhol violated her copyright and demanded that the foundation pay royalties and licensing fees, likely to make up for the unpaid years. The Foundation, on the other hand, argued that the silkscreen prints produced by Warhol were “transformative” as the characteristics of the image were altered.
Having some knowledge of Warhol and his works, I thought of his images simply as replicas; ultimately, these objects in his paintings work as inspiration. Yet, Goldsmith still has a right to argue the use of her piece. We are seeing two sides that are arguing for artists either way, and it is chilling to see how this case can make great alterations to smaller artists and expression in the country.
In the NPR article, Totenberg states, “The outcome could shift the law to favor more control by the original artist…could also inhibit artists and other content creators who build on existing work in everything from music and posters to AI creations and documentaries.” If the Supreme Court yields to Goldsmith’s argument then all artwork will be regulated by the creator, restricting fair use.
This is a difficult issue to choose a side on, especially considering the escalation of the case to the Supreme Court, as Goldsmith could potentially be compensated for her image. Though it is important to evaluate that in times like these, when many rights have been challenged by the Supreme Court, a subtle restriction on the constitutional freedom of expression can impact more people than we think.