Is Art Ever “New”?
The Supreme Court recently issued an opinion involving a copyright dispute between a professional photographer, Lynn Goldsmith, who took the black and white picture of the rock star Prince on the left and the Andy Warhol Foundation for the Visual Arts (“AWF”), the present owners of the Andy Warhol creation on the right. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith (May 18, 2023).
The background to the dispute goes back to 1984 when Vanity Fair magazine sought to license one of Goldsmith’s Prince photographs for use as an “artist reference.” The magazine wanted the photograph to help illustrate a story about the musician. Goldsmith agreed, on the condition that the use of her photo be for “one time” only. The artist Vanity Fair hired was Andy Warhol who made a silkscreen using Goldsmith’s photo. Vanity Fair published the resulting Warhol image alongside an article about Prince. The magazine credited Goldsmith for the “source photograph,” and it paid her $400.
From Goldsmith’s photograph, however, Warhol derived 15 additional works which collectively came to be known as the Prince series. Much later, AWF licensed one of those works to Condé Nast, again for the purpose of illustrating a magazine story about Prince following his death. AWF received $10,000 for the license. Goldsmith received nothing and hence the litigation.T
Resolution of the dispute involved an interpretation of federal copyright law. The majority of seven justices in an opinion written by Justice Sotomayor decided that AWF did infringe, concluding that AWF could not claim “fair use” of Lynn Goldsmith’s photograph because Warhol’s use of it was not sufficiently “transformative.” Justice Kagan dissented, joined by Chief Justice John Roberts, asserting that Warhol’s addition of “important new expression, meaning, and message” counts in his favor in the fair-use inquiry. The rather sharp exchange between two justices usually on the same side is a fascinating discussion of when, if ever, art is “new.”
For the majority, Justice Sotomayor concludes that, whatever new expression Warhol added to Goldsmith’s photo, he made only “modest alterations.” Warhol “cropped, flattened, traced, and colored the photo” but “otherwise did not alter it.” Although Warhol portrayed Prince “somewhat differently,” the “degree of difference” is too small, consisting merely in applying Warhol’s “characteristic style” to bring out a particular meaning that was already available in Goldsmith’s photograph. The silkscreen and the photo, the majority claims, still have the same “essential nature.”
Justice Kagan, however, sees Warhol’s work much differently. For her, Warhol’s Prince series conveyed a fundamentally different idea, in a fundamentally different artistic style than the photo he started from. In fact, says Justice Kagan, Warhol is the “very embodiment of transformative copying.” He is proof of a concept — that an artist working from a model can create important new expression. Appropriations can help bring great art into being. In her opinion, Warhol is a towering figure in modern art not despite but because of his use of source materials.
Making the point more broadly, Justice Kagan asserts that “creative work does not happen in a vacuum.” Quoting the illustrious Justice Joseph Story, who sat on the Supreme Court in the first half of the 1800s, “In literature, in science and in art, there are, and can be, few, if any, things that are new and original throughout.” It is by an iterative process that knowledge accumulates and art flourishes. The development of art works across time and place constantly builds on what came earlier. While Warhol may have been the master appropriator within the field of visual art, he had plenty of company as Justice Kagan illustrates with numerous examples. Shakespeare borrowed over and over and over. Some early blues artist began to play the 12-bar, three-chord form — the essential foundation of many blues songs. Stravinsky reportedly said that great composers do not imitate, but instead steal. At any rate, writes Justice Kagan, he would have known. He took music from all over — from Russian folk melodies to Schoenberg — and made it inimitably his own.
The two Court opinions are worth reading in full. Although the case at hand involved arcane copyright law, the debate about Warhol’s art and to the extent it was “new” is fascinating and surely thought provoking.
John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
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