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How the Prince/Andy Warhol case could change western art

by | Jun 23, 2023 | Intellectual Property

How much borrowing is too much borrowing? When does inspiration cross the line into stealing?

The Supreme Court’s recent ruling over a work by Andy Warhol which featured an altered photo of Prince, taken by photographer Lynn Goldsmith, tries to draw a red line between adaptation and theft.

The art in question

In 1981, as Prince gained mainstream fame, Goldsmith arranged a photo session with the artist for Newsweek magazine. She took a series of in-concert and studio photos.

Three years later, as Purple Rain rocketed Prince to the upper echelons of music and popular culture, Vanity Fair asked Andy Warhol to provide art for a lengthy profile on the musician. Vanity Fair licensed one of Goldsmith’s photos for $400, a black and white portrait, for Warhol to use as a “reference.”

Warhol modified the original photo, cropping it down to a headshot, filling the white space with an orange-red color and adding strips of purple. This version of the art appeared on the Vanity Fair cover. Warhol then created numerous variations of the piece, a staple of Warhol’s style, famously represented in his 1967 Marilyn Monroe series.

After Prince died in 2016, Vanity Fair did another profile on the musician’s life, licensing one of Warhol’s alternate Prince pieces from 1984 for $10,000. Goldsmith received no compensation or even credit. She accused the Warhol Foundation of copyright infringement, and the Foundation filed a lawsuit against Goldsmith.

The Warhol Foundation was prepared to die on this hill because so much of Warhol’s art, worth hundreds of millions of dollars, is adapted works like the Prince piece under the “fair use exception.” If one copyright infringement domino falls, they could all fall, and the Foundation could face ruin.

The justices, in a 7-2 decision, ruled for Goldsmith.

Will the Supreme Court ruling affect creativity?

Visual art has a long history of incorporating previous works under the fair use exceptions. The Supreme Court ruling leaves such art open to lawsuits, preventing thousands of visual artists from selling their work and collectors and museums from displaying art that includes adapted art. The same ramifications could be applied to music, film, literature and other artistic mediums.

The majority justices insist the ruling only applies to certain art in specific scenarios. In this case, the Foundation used elements of Goldsmith’s photo to profit in the same arena, magazine art commissions, where Goldsmith could have theoretically profited herself.

The dissenting justices argued that the ruling could be used on a larger scale to throttle all artists who now don’t know exactly where fair use begins and ends.

It’s tempting to argue that this ruling could, in fact, revitalize artists, driving an explosion of original art and the world would be the better for it. But inspiration- and adaptation-driven art dates back thousands of years. Elements of prior art, subtle or obvious, can be found in almost all works of art in every medium. Will an identical combination of four or five words in song lyrics constitute infringement? Will any artist who includes a variation of a melting clock receive a cease and desist from the Salvador Dali Foundation? Would Ed Sheeran have lost his copyright lawsuit by the heirs of Marvin Gaye?

Only time, and future lawsuits, will reveal the true breadth of this ruling.