In 2016, Condé Nast published a magazine to commemorate the death of the rock star Prince. For the cover image it used one of Andy Warhol’s screenprint portraits of the musician. As with much of his art, including his more famous portraits of Marilyn Monroe, Warhol created the print by adapting and manipulating a photograph, this one taken by Lynn Goldsmith. Goldsmith objected to the publication and litigation followed. In 2023, the U.S. Supreme Court resolved the dispute, ruling that Warhol had violated Goldsmith’s copyright.

This is the third (and final) part of my effort to understand Warhol v. Goldsmith. (I invite you to read or revisit part 1: the new law of creation and part 2: the new problem.

My goal in Part 3 was to ask local art community leaders, “How will the Supreme Court’s decision affect the art that Oregonians get to make, see, and sell?” I interviewed three of the contributors here. Prof. Lydia Pallas Loren responded with written comments. Readers of Parts 1 and 2 offered their own insights, two of which I have shared.

Bruce Guenther: “Flotsam washed up on the surrogate shores of the A.I. revolution.”

Will the Supreme Court’s ruling in Warhol Foundation v. Goldsmith limit what art museums feel free to collect and exhibit? As we relaxed in the garden of his art- and book-lined home, Guenther was not alarmed: “Contemporary culture will leave this decision in the dust. It will be moot before we are gone.” Digital technology, especially A.I. usage, Guenther continued, has already moved beyond the decision by redefining “original/originality at every level.”

But he was appalled by the Court’s superficial thinking and its ignorance of what artists have done throughout history. As we looked at the Warhol and Goldsmith portraits of Prince side by side, Guenther pointed out subtle but significant changes Warhol had made. He had not just cropped the three-quarter-length portrait to focus on the face, but further isolated Prince from reality by removing shadows and depth. Guenther showed me how Warhol had accentuated the boldness of Prince’s wary eyes, mustache and full lips.

To American late 20th-century culture, Guenther said, Prince, the man, was less significant than Prince the logo: “Warhol captured that—and Goldsmith did not.” Guenther noted the fleshless transparency of Warhol’s Prince, how the features float, more symbol than man. How Warhol used “color and line [to] charge the flat, posterized image with a smoldering, raw sexuality.”  “Warhol was a conceptual artist,” Guenther emphasized, “concerned with ideas, not objects or individuals.”

When I circled back to my first question, challenging Guenther’s confidence that the Court’s decision would have no lasting consequences, his optimism prevailed: “Today’s artists will find a way to create/reinvent, and ten years from now this decision will be flotsam washed up on the surrogate shores of the A.I. revolution.”

Bob Kochs: “Art is anything you can get away with.”

Will the Warhol v. Goldsmith ruling impact the market for the work of Andy Warhol and other appropriation artists? More than anyone in the Portland region, Kochs is the guy who would know the answer. As a prominent dealer in art prints, including those of Warhol, Helen Frankenthaler, Chuck Close, Ellsworth Kelly, and Alexander Calder, it is his business to know the market. We met at Augen in a room that serves as Kochs’ library and office. Rows of framed art prints leaned against every wall.

Kochs was unconcerned that the decision would affect the secondary market in Warhol’s work, and did not think it would intimidate dealers like him. I asked if he would hesitate if given an opportunity to show a Warhol Prince. He replied by sharing a quote, sometimes attributed to Warhol, who when asked, “What is art?” answered: “Art is anything you can get away with.” Kochs was sure he could get away with it and that Goldsmith would not be gunning for him. Copyright vigilantes are not, in his experience, interested in the retail art market.

The Supreme Court’s opinion hinged on the conclusion that Warhol’s screenprint unfairly competed against Goldsmith’s photo. But Koch didn’t buy the notion that a painting competes with a photo, at least not in his market. He deals in both art forms, noting that “A person who likes a screenprint may not in any way, shape or form like the black and white photograph. The scale would be different and the impression the viewer gets would be different—and the cultural interest would be totally different.”

Laurel Reed Pavic: “Leave it to the lawyers to worry about.”

I met with Prof. Pavic at PNCA after navigating through the youthful energy of blooming creatives in the school’s central lobby and café. It was a throw-back high.

Prof. Pavic’s own words best summarize her thoughts on how artists, especially young artists, learn to visualize their life journey by integrating the creations of others.

“All artists learn by absorbing how other artists have tried to convey some experience, thought or feeling. Art is made, so to make it yourself, you need to understand how that is done. The point of teaching Art History is to give our students the past to have at their disposal when they explore similar experiences, thoughts or feelings. They need to see a lot of stuff, take it apart and put it back together. Like an invention, a work of art is not something new that came from thin air, but parts that are put together in a new way. It’s all in how you put the pieces back to together. That’s what the Supreme Court doesn’t get.”

A.I. and the topic of Machine Learning—image appropriation taken to the extreme—occupied much of our conversation. Pavic noted that PNCA’s students fear that the work they routinely post on the web will be stolen, silently sucked into the A.I. vacuum cleaner without their consent. Yet many can’t resist playing with a powerful new tool that, by pilfering the creations of others, can unleash their own imaginations. Then again, neither can Prof. Pavic. She used Adobe’s Firefly to create the syllabus cover for her class on the History of Studio Arts (PNCA’s mascot is the sloth).

But is Warhol Foundation v. Goldsmith something she fears? Nah. Pavic agrees with Bruce Guenther and Bob Kochs that, for artists, it is largely background noise and much ado about nothing. She’s glad to “leave it to the lawyers to worry about.”

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Which leads us to a lawyer who does worry about it:

Lydia Pallas Loren: “It’s all about the money . . . and the risk.”

In response to my inquiry, Prof. Loren wrote:

“Copyright scholars have been wringing their hands about the Warhol Foundation decision ever since it was handed down, and for good reason. The focus on money that the Court insists upon is likely to change the risk calculation, and that change may result in less creative output of a certain type, namely transformative commercial art.

“After the Court’s Warhol Foundation decision, the money side of the story is even more important than it was before, and the focus is on the ‘use’ of the defendant’s work, not the work itself. A subtle but important distinction. But there is another money consideration—and it relates to how legal rights actually get enforced. It turns out that rights are not generally enforced through a ruling by a judge or jury. Rights primarily get enforced through negotiation and settlement.

“When a copyright owner asserts infringement, the accused infringer evaluates what they might lose if they are ultimately held to be infringing. In this area, copyright law has some scary potentials, which copyright owners typically highlight in their demand letters: Statutory damages of up to $30,000, or worse, up to $150,000 if the infringement is willful, along with the potential to have to pay the other side’s attorney’s fees (in addition to your own).

“The possibility that the use is a fair use gives the accused infringer’s lawyer a counter argument—and also puts some risk on the copyright owner. Specifically, if there is a lawsuit and the accused infringer is found to have engaged in a fair use, then the copyright owner might have to pay the attorney’s fees of the person engaged in the fair use. With that dynamic, the potential for a settlement is heightened.

“The Warhol Foundation decision dilutes the power of the fair use argument for transformative works of art and thus weakens the starting negotiating position of potential fair users. In the end, that ruling has the potential to cause artists and art dealers to settle more quickly. Even more significant may be the ruling’s chilling effect. Few artists have either the appetite or the financial resources for litigation. Yet the type of ubiquitous commercial images that stimulated Warhol’s genius­—and that are just as likely to inspire today and tomorrow’s creative minds—are often controlled by corporations with their own legal departments. It is not a level playing field.

“It is even more insidious than that. If you want to make money as an artist, commercializing your art is one path. But that path has now been strewn with the greater possibility that a commercial use will run afoul of an inspiring work’s market. So as an artist, you are fine, unless you actually want to pay the rent.”

Readers’ thoughts

My previous articles on the Warhol Foundation ruling prompted these responses from two local artists:

Portland artist David Friedman works primarily with paper cuts. He wrote: “I am traditionally trained and have a strong background on how artists ‘borrow’ from works of the past and grow them into something new and significant. Occasionally, I have borrowed knowingly from Magritte, Klee, Picasso, Van Gogh and probably countless others.” He offered several powerful examples, including this:

Another Oregon artist, Chris Horner, sent these thoughts:

“As an artist who mainly works from appropriated media elements, [I find this] a very frustrating ruling as it suggests that art is just a flavor of capitalistic production, that artists are in competition with one another. My goal isn’t to compete against anyone * * *. I care about artists making art.”

Chris concluded his comments as I would like to end mine:

“The most appealing thing about art has always been that there really are no rules, if there were, artists would simply break them, that’s part of the job.”

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Please share your thoughts, point out my mistakes, and continue the conversation. Just hit Reply. Join me at @davidsladerart, and read my Art Letter essays in Oregon ArtsWatch.