The Supreme Court has recently upended what artists thought they knew about the line between inspiration and copying.

Late last year, in Warhol Foundation v. Goldsmith (2023), the Court ruled that the publication by Condé Nast of one of Andy Warhol’s silk-screen prints of the rock musician Prince violated the copyright of the photographer whose photo Warhol had radically transformed. This new law-of-the-land gives almost no weight to creative contribution. Instead, the commercial question rules: Does the derivative work compete with the original? Now, it is all about who gets the money.

I have previously written on this issue, fearful of the outcome, as the dispute wound its way through the courts. Now that we have a final ruling from the Supreme Court, I want to focus close to home: How will the decision impact the art that Oregonians get to see and that Oregon artists get to create, exhibit, and sell?

But first, we need to identify the new guideposts. That is the subject of Parts 1 and 2 of this article. Part 3 will follow after you, our readers, have had the opportunity to share your thoughts, and will incorporate your comments along with impressions and concerns of several individuals closely involved in Portland’s art world. It will also delve into the mystery waters of Artificial Intelligence in art creation—a development that might leave the Warhol decision in the dust.

This is not a small matter. Art-making is an exercise in freedom. Tying an artist’s hands means less art, worse art. Not only is most art “derivative” in some way (even when its sources are not obvious) but Portland is fortunate to be home to one of the finest collections of Warhol’s prints anywhere.

Purple fame

Lynn Goldsmith is a commercial photographer known for her work with rock musicians. In 1981, Newsweek commissioned her to take a series of photos of the up-and-coming rocker Prince Rogers Nelson. Years later, Goldsmith licensed one of her Prince photos to Vanity Fair as a one-time “artist reference for an illustration.” Vanity Fair hired Warhol to create the illustration, and Warhol used Goldsmith’s photo—much as he did with photographs of Marilyn Monroe and many other celebrities—as raw material to create a series of audaciously abstracted silk-screen prints of Prince’s disembodied face. Among those was a purple version (Purple Prince), that the magazine published in 1984. So far so good.

After Prince died of a drug overdose in 2016, Vanity Fair’s parent company, Condé Nast, asked the Warhol Foundation (Warhol died in 1987) for permission to reuse Purple Prince for a special commemorative magazine about the musician. That is when Condé Nast learned that the image was just one of a series of sixteen variations (fourteen silk screen prints and two pencil drawings).

One of those images was Orange Prince, which Condé Nast selected. Goldsmith then claimed copyright infringement. The Warhol Foundation—over confidently—then sued her to have her claim declared invalid.

The fourteen print variations are instantly recognizable as Warhols. As he often did, Warhol took a photo likeness of an individual and detached it from reality with hyper-vivid colorations, exaggerated contrast, distorted features, line additions, and cropping.

Goldsmith’s sensitive portrait is an image of youth and vulnerability, a real person. Warhol’s variations are not. Instead of flesh and substance, his Prince is flat, shadowless, and transparent. You could put your hand through his face. Echoes of hair, nose, and eyes float in an eerie void. The screenprints are distillations of the concepts, symbols, and emotions that characterized Warhol’s worldview and that he most likely associated with Prince and his Rock World: commercialism, fame, excess, exploitation, lust and promiscuity, addiction, alienation, noise, artifice, celebrity, fear, kinkiness, precocious talent, glamor . . . and wherever else your imagination takes you. Each variation targeting different facets of the diamond.

Warhol also manipulated photos of lesser-known individuals, but they are, well, lesser known. Much lesser known. Why? Because a large part of Warhol’s magic was how he exploited the celebrity of his subjects. His generation knew Marilyn and knew Elvis and knew Liz largely from their ubiquitous publicity shots. The better known the face, the more powerful could be Warhol’s interpretation. And his versions—not the original photos—are what has struck deepest into our culture, affecting how artists, fashion designers, photographers, and filmmakers see and create. Try to rerun modern cultural history without “Pop Art.” And try making Pop Art without popular images to start with.

The problem

William S. Burroughs, the beat-era author of eighteen novels, was one of the most inventive and prolific writers and visual artists of the 20th century. He often composed by cutting one of his draft manuscripts into pieces and rearranging the parts in random patterns. He “painted” by blasting a shotgun at a line of spray paint cans in front of a plywood board. No one (other than his hyper-critical self) could accuse him of shying from innovation or lacking creative imagination. Yet, to Burroughs, the secret of making art was “look, listen and transcribe and forget about being original.” Stealing is the beginning.

Sounds inconsistent? It’s not. For when one steals, he or she takes what is stolen and makes it their own—and that is the essence of the creative process. Without the past creations of others, there is no place to start. When I make a painting, I am channeling—sometimes consciously but usually not—every image I have ever encountered: every sunset, every smile from my wife, every photo, every painting, every cloud reflected on a skyscraper. I can’t help it.

But when is a theft mere copying? A cheat instead of a start? And does it matter if, how, and where the original and the stolen creations are used, sold, shown, or published? 

The United States Copyright Act of 1976 (earlier versions go back to 1790) attempts a roadmap through this maze. Intended to encourage creation, the act sets up a tension between encouraging creation by protecting creators and encouraging creation by fostering inspiration and fertilization. The key to this balancing act is the concept of “fair use,” a test that allows other parties to “fairly use” a protected creation.

As one example, my use here of both Goldsmith’s and Warhol’s images to illustrate my commentary on their work is (probably) “fair use.” But, at least for artists, the most important aspect of “fair use” has been the “transformation” test that—until now—allowed a derivative creation that “adds something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message.” Warhol’s Princes fit the bill: Side by side, the Goldsmith and Warhol images are cosmic twins, sharing a face but breathing incompatible atmospheres.

The core problem with “transformation” as a legal test is that it asks for a value judgement and expects judges to have a sensitive appreciation of the creative process. Two individuals look at (or hear or read) the same two works of art and see (or hear or read) different things—and many judges lack the exposure to visual art, or music, or literature to allow seeing or hearing beyond superficial similarities. As a result, the transformation test resulted in hard-to-predict and inconsistent outcomes. Yet, for the most part, it balanced the interests of creators and society’s need for new creations. Just in a messy way.

The broken fix

Judges don’t like messes, and they certainly don’t like having to mess with messes. That seems to have driven the Supreme Court to now transform “transformation” into a more concrete standard. The Court’s solution is to not even look at the art (at least, not too closely).

Instead, in the future, the law’s focus is almost exclusively on whether the derivative work is being used in a similar manner as the original so that the two are in commercial competition with each other. The Court squarely rejected giving significant weight to whether the new work added “some new expression, meaning, or message.” The focus is on how the two works are being used, with “the commercial nature of the use” looming over any creative contribution. That is a more fact-based inquiry that doesn’t call on judges to leave their comfort zone. It also makes no sense—at least, not to an artist.

How can judges decide whether two works are in the same competitive ring without asking if they have the same effect on the viewer or listener? If the original is limp and the appropriation is powerful, is the competition still “unfair?”

Through Warhol’s Orange Prince, Condé Nast was able to convey the manic intensity of Prince’s life in a way that would not have been possible with Goldsmith’s restrained photo. Yes, the two images are of the same face, and, yes, either one could have illustrated the magazine cover. But they are not in the same league. Warhol’s print won out because it is so much more powerful. That is how evolution works.

Now, under the new rule, Goldsmith was entitled to a license fee for the publication of Orange Prince, a result that seems fair enough. But she also had the right to prohibit its use . . . to suppress it. And that is an entirely different matter.

Should we care? In Part 2 of this article, we will turn our attention to how artists have taken from each other throughout history. Part 3 will then focus on our own neighborhood, adding the comments and concerns of you, our readers, and several Oregon arts leaders. Please join the conversation. Just Reply to this Art Letter or write David Slader at dslader46@gmail.com.

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