The Supreme Court of the United States has ruled: Andy Warhol should have recognized the copyright of photographer Lynn Goldsmith. Warhol used a portrait of Prince, captured by Mme Goldsmith, to compose 15 works — 14 serigraphs and two pencil drawings — without asking her for a license, naming her, or paying her royalties.
He was wrong, ruled the Court on May 18, holding with this judgment to counter the “possibility that celebrities benefit from a privilege to plagiarize”. A look back at a decision eagerly awaited by the market and the art world.
“This copyright case involves not one, but two artists. So begins the decision of the US Supreme Court. “The first, Andy Warhol, is very well known. […] His contribution to contemporary art is undeniable. The second artist, Lynn Goldsmith, is less well known. But she is also a pioneer. »
Lynn Goldsmith, a photographer of music performances and musicians, makes a living with the publications of her shots. She took her first shot at 16, catching… the Beatles. In 1981, the magazine Newsweek sends him sketching the portrait of a rising young talent, Prince Rogers Nelson.
Three years later, when this musician became Prince, the photographer, for $400, authorizes the magazine Vanity Fair to use the portrait. It will serve as an “artistic reference” for an illustrator. “It’s often done in magazines and newspapers,” recalls François Le Moine, director of the specialized legal firm Rules of the Art, who read the judgment for The duty.
“Lynn Goldsmith’s authorization has been given for a maximum of two reproductions inside the magazine, once,” continues Mr. Le Moine. Of the, Vanity Fair asks Andy Warhol to make a work from Goldsmith’s photo. Warhol made one of his serigraphs”, a purple Prince. “Goldsmith is named, credited for the original photo. »
The flow of inspiration
Warhol, inspired, does not stop there. “Without asking Goldsmith for permission, he produced thirteen other serigraphs and two pencil drawings – we have reached 16 works…”, recalls the man who also teaches law at the University of Montreal. These works are now known as parts of the “Prince Series”.
Warhol died in 1987, aged 58. He will have had more than 15 minutes of fame. Then, in 2016, Prince died, aged 57. To publish a tribute to the musician, Vanity Fair asks the Warhol Foundation for permission to reproduce the work “Prince Orange”, for $10,000.
“Mme Goldsmith sees the front page of the magazine, continues copyright specialist François Le Moine. She recognizes her photo, cannot find her name for her work. She sends a letter to the Warhol Foundation, which in response is suing Goldsmith seeking a legal declaration that there is no infringement of Goldsmith’s copyright. Or to declare that there is a fair use of copyright, summarizes the lawyer.
“We call it a declamatory judgment: when you see that there are problems looming, you take the lead and you pursue. It is done in law. Here it is clear that it was Goliath attacking David. »
The Warhol Foundation won in the first instance. She then loses on appeal, as the Court determines that the Warhol is an infringement of Goldsmith’s work and that there was no fair use of copyright. “And it came up in the Supreme Court just on this issue of fair use. »
The Little Illustrated Judgment
The recent judgement, illustrated with reproductions of photos of Goldsmith and works by Warhol, Manet, Giorgione, Titian, Velázquez and Bacon, is a fascinating read. François Le Moine confirms: “Yes, for once we have illustrated law…”
Does Warhol, by taking the photo of Goldsmith in his own way, make ” transformative art »? Was he transforming the work to the point of not having to respect Goldsmith’s copyright? “This is one of the questions that the Court had to address, as well as the notion of fair use of the work, or fair use. »
“The Supreme Court readjusts, recalling that often, as soon as an artist appropriates an existing work, this de facto creates a new meaning. And she adds that here, the distribution channel was the same: Lynn Goldsmith earned her living by selling her photos to magazines. »
“We took away from Mme Goldsmith of earning opportunities. We reclaimed his work, we used it to resell it to the same magazines that paid his rent. This balance between the commercial aspect – the pennies are always important in American law… – and the transformation of the original work was essential in the thought which underlies the judgment”, estimates Mr. Le Moine.
“What prevented Warhol from asking permission and getting a license before doing his 15 works? “, thinks the specialist. “It’s a perfectly normal process, and it’s not a threat to creative freedom. All artists need to be able to get paid for their creative work, not just those at the top of the pyramid. »
Serial effect (graphics)?
What will be the consequences of this decision? “You never know in advance what the impact of a judgment will be,” recalls Mr. Le Moine. It can remain an isolated case, like the start of a series of lawsuits – if Goldsmith decides to sue for the rest of the Prince series, for example. »
Because this judgment relates only to the reproduction of the work of Warhol, inspired by the photo of Goldsmith, in a magazine. Can the Prince series be exhibited in museums, or sold, without Mme Goldsmith be credited? Should the name of the photographer be added to the catalog of Warhol’s work? These questions are still open.
“For a long time, the work of photographers was very devalued compared to other visual artists; we see in the judgment a certain recognition of the photo”, also notes the lawyer.
“With the Internet and the artificial intelligence that is already in place, it is very easy to reproduce and transform works of art, often in defiance of the most basic rights of artists. The judgment has the virtue of recalling the importance of respecting the work of all artists, and the importance of remunerating them for their work. »