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Copyright or Wrong?

Bill Lasarow

“Fair use is a doctrine in the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder.”

—Wikipedia entry

 

The fair use of images may sound simple, but that is misleading. The most central tenet of the law is whether the use of copyrighted material is commercial and profit making, or whether it is for non-profit educational purpose. Next to that, there is the question of whether the market (real or potential) and value of the copyrighted material is impacted. The rest is quibbling, but that quibbling, depending on how a court ruling is framed, can amount to a minor tremor or a monumental temblor.

Andy Warhol, “Orange Prince,” 1984, silkscreen commissioned for

Vanity Fair magazine. Courtesy of the Andy Warhol Museum, Pittsburgh

LGoldsmith 0523aTDC.jpg

A portrait of Prince taken by Lynn Goldsmith in 1981.

Collection of the Supreme Court of the United States

The recent Supreme Court ruling in the case of photographer Lynn Goldsmith v. The Andy Warhol Foundation revolved around the Foundations unauthorized use, in 2016, of a 1981 photograph taken by Goldsmith of the musician. In 2016, when Prince tragically died, the Condé Nast published one of the Warhol silkscreens for a commemorative magazine, for which they paid the Warhol Foundation a licensing fee. This precipitated a lawsuit from Goldsmith. Given the 35 year lag, some context and history must be considered.

Goldsmith, now 75, may not enjoy the degree of celebrity, brand, or market of Warhol, but she is no slouch. She began her career with Elektra Records, directed the TV music series “In Concert,” managed bands, produced and recorded her own music, and, oh yes, became an accomplished artist and photographer while she was at it. Her photo agency LGI represented celebrity subjects within the entertainment industry. Her photography has appeared on album and magazine covers on numerous occasions. She even published a book dedicated to downright Rococo self portraits, “The Looking Glass.”

 

The key point here is that the matter of copyrights, in this case, involves not just theory but real money. I’ve had, as publisher of ArtScene, Visual Art Source, and The Democracy Chain occasional brushes with matters of copyright. But I’m small potatoes, and folks are far more polite in the trenches that I patrol. I neither could nor would spend hundreds or thousands of dollars to license use of an image — and as an art platform I’ve published thousands of them. I, and many like me, depend on fair use. It delights me to provide credit for all images that we run, copyrighted or not, and when one of our contributing writers has an opportunity to republish material we make no copyright claim so that they can ask for and received whatever payment they wish from another publication. Given that very straightforward approach to fair use, an unscrupulous attorney may have a set roster of legal references meant to produce some revenue by convincing you that “fair use” ain’t so simple in a court of law. My advice: have your own attorney and refer it to them. My warning: even if you legitimately invoke fair use, make sure you do the Right Thing; provide credit, and if asked to pull an image honor the request.

 

But make no mistake, for most the creative mission does not include “… and make many thousands of dollars.” Our ambition mostly ends with earning the engagement of some readers and artists. Disney will probably never feel either threatened or enticed by our corner boutique.

 

The Warhol Foundation v. Goldsmith is a different story. In 1984 Vanity Fair DID license Goldsmith on behalf of Warhol. Vanity Fair’s publisher, Condé Nast, ran the 1984 Warhol image on the 1986 front cover commemorating Warhol’s life. The contention was that Goldsmith had sold licensing rights for a single usage, and that they no longer owned anything based on the original agreement. The Warhol Foundation, however, was paid for licensing rights in the 2016 edition commemorating Prince. Goldsmith did not even receive acknowledgement in print. Did she have the right to expect and demand that her copyrights nonetheless be honored? If so, she therefore was owed based on the original licensing rights agreement with Condé Nast.

 

Further, Warhol produced a suite of 16 Prince images drawn from Goldsmith’s photograph. These have enjoyed wide exposure in museum and gallery exhibitions spread around the globe. Where, Goldsmith asked, is her credit as the photographer? She has a point, but it turned out that to answer that question it had to reach the very flawed pinnacle of our judicial system.

Lynn Goldsmith, “Patti Smith Group — Easter,”

1978, photograph for album cover

Lynn Goldsmith, from “The Looking Glass,” a self portrait series, 2011, photograph. Courtesy of Taschen GmbH, Cologne, Germany, and Lynn Goldsmith

The Warhol Foundation filed court papers first, asking for a preliminary ruling, immediately after Goldsmith informed them that she intended to sue the Foundation. The Superior Court Judge John Koeltl agreed with The Warhol that Goldsmith’s claim was a shakedown and that Warhol’s work was sufficiently transformative. However, Second Circuit Court Judge Gerald Lynch overturned Koeltl’s decision primarily by ruling that Warhol’s version was insufficiently transformative.

 

Those lower court decisions as to which party was liable culminated in the recent Supreme Court decision that is now the subject of very widespread discussion as to its impact on copyright law within the art world and far beyond. It ruled, by a 7-2 vote in favor of Goldsmith, that Warhol’s appropriation in this case is finally deemed insufficiently transformative. The ruling of the Second Circuit Court was therefore the one upheld. Beyond that important yardstick, the Supreme Court ruling considers that the role of fair use in promoting creativity must be shared by its commercial licensing function.

 

Keep in mind that this Court is a historically extreme example of a partisan, politically biased Court, casting rulings in defiance of both Constitutional and common law, not to mention Court precedent — thus rendering its own precedent flimsy. That does not mean that EVERY decision by this Court reeks of bias. But its every decision is colored by that. If less controversial than its Dobbs decision, the Goldsmith decision reflects the conservative majority — joined by two of the three liberal Justices. Does that make this ruling an inherently more durable revision of copyright law?

Lynn Goldsmith, “Snow Queens” from “The Looking

Glass,” a self portrait series, 2011, photograph.

Courtesy of Taschen GmbH, Cologne, Germany, and Lynn Goldsmith

The two dissenters on the decision are a noteworthy pair: Chief Justice John Roberts, and Justice Elena Sagan. A minority of one from each of the Court’s political tribes. What struck me from clips broadcast publicly, they base their agreement that Warhol’s images are sufficiently transformative on a clearer understanding of both aesthetic differences and the art world’s market system than do their seven colleagues. I agree with the principle, and that Warhol’s version is not remotely a mere copy, but the ruling is both narrow enough and correct enough as to the meaning and intent of fair use. The ruling is reasonable, and I do not see this as a serious impediment to our creative and cultural vitality.

 

Have the other seven Justices now upended that system? Have they placed an undue burden on artists’ creative freedom that will produce a chilling effect? The emergence of appropriation as a recognized aesthetic strategy has been around for nearly half a century. But the borrowing and referencing of specific works of art by new generations of artists is a matter of centuries of practice. Is that all over? I would venture that it is not, neither as a matter of the Court’s ruling nor of practices that are so common and of such deep historical vintage. The ruling specifically is aimed at Condé Nast’s 2016 publication, its licensing agreement and commercial intent, and in particular excludes Warhol’s suite of 16 screen prints.

 

What remains an open question that may result in future court cases is the commercial intent, the money exchanged via licensing agreements. Very few artists are concerned with the sale of magazine cover art, let along t-shirts and mugs. To the degree that they are it is not unusual that this would be in support of a cause for which they are not being paid. This is exactly where “fair use” and “commerce” butt heads.

I am skeptical of the hardship imposed on The Warhol, but mindful of honest oversight. At the level of common sense principal, I would have had The Warhol reach out to Goldsmith in advance of publication in order to offer appropriate credit. At that point had Goldsmith required fresh compensation the parties could have negotiated. This may or may not have resulted in Coldé Nast going elsewhere for an image. But I would not take seriously an accusation that this would ever have a chilling effect on other artists or publishers. Sharing revenue earned via appropriation is not the same as fair use. Either both parties share the benefit, or the originator may veto such use altogether, itself more than a commercial decision, but first and foremost a creative one considering the originating artist may be passing on easy money. Self interest can and should be about more than just a monetary consideration; therefore why should an originating artist’s integrity be secondary to appropriated use designed to produce revenue?

 

Also, if this decision had been made by 1960, would Warhol have been unable to paint and sell his Campbell’s Soup Cans? The use of mass-produced products, labels, logos applies neither to this case nor to copyrights generally. But who knows, maybe such a case is coming down the pike for this Court to consider in the near future. If so, then we really must hope for a different outcome.

 

I’ll go with the collaborative effect the Goldsmith decision may well have on art rooted in appropriation. It will continue on those terms, which demands transparency on the part of the appropriating artist, but rests on the willingness of the referenced artist (or their representatives). Even where fair use decisively applies, courtesy occupies a higher rung above Dante’s Inferno than mere legality. It is right and proper that the appropriating artist should be held to a standard that respects the creative view of the originating artist. In this way the Court has, for a change, rendered a decision that we can and should adapt to.

Having said all that, I repeat that the current Supreme Court is dominated by a handful of partisan political ideologues who are overtly hostile to the reasonable values and Constitutional rights of the majority of Americans. The Warhol Foundation v. Goldsmith decision does not, sad to say, change that.

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