90.5 WESA: Nearly four decades ago, Andy Warhol created 16 artworks based on a photo portrait of Prince. Both the famed artist and the iconic musician have since died, but the photographer who took the original photograph is still alive. And her claim that Warhol’s work violated her copyright on the photo is headed to the U.S. Supreme Court.
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My brain hurts trying to understand what a ruling in favor of Lynn Goldsmith’s claim would imply for the art community. A large part of popular art, at least in my limited understanding, is the idea of borrowing from popular media. Take as a key example Warhol’s iconic paintings of Campbell soup cans. An argument could, in theory, be made for that to be an appropriation of copyrighted material for new artworks. Warhol’s history with taking popular media is what made him famous. His paintings of Marilyn Monroe, Elvis Presley, and Jackie Kennedy are all based on images other people took. And yes, this argument has been made before. In fact, it’s come up at a court of law before, it’s just the first time it's gotten to this level. I also wonder why Lynn Goldsmith is fighting this now and not before? I guess the question is now did Warhol alter Goldsmith’s original photograph enough to qualify as a new artwork in its own right? And is that allowed?
Given all that's going on with DMCA within spaces like Youtube and Twitch, it's interesting to see fair use come into play in an environment that involves art and photography. With all the history the art world has with either building off of another's work or else using a kind of collage style with mixed media (the media of which is also someone's work), I highly doubt that this case will rule in the photographer's favor. But, if they did, I wonder what implications that would have for the arts, theater included. Would artists pay the original source a flat fee to use their work or to develop an imitation of it? Or would it be a percentage given based off of the revenue of the show? I think things could easily get pretty complicated. I also think that like DMCA, it would get very hard to enforce someone acquiring the rights to an image legally. On Broadway, it'd be more enforceable since it's so strongly in the public eye, but certainly local productions would be hard to monitor.
This is so bizarre. I almost can't see a benefit for Lynn Goldsmith in taking this case all the way to the Supreme Court. I understand wanting recognition for the photograph reference but I feel like that would have been much better settled over a conversation and a re-labeling of the paintings with some credit to Lynn Goldsmith for the reference work. I also think that this case is stirring up the idea of fair use in the art world more than anything else. No matter the outcome of this court case the idea of borrowing from other peoples art and making it your own under the guise of fair use will almost defiantly never be the same again. For the sake of the art community I hope that Goldsmith doesn't with the case, because of how much turmoil that would stir up. However, personally I cannot wait to see what happens with this court case because I cannot seem to decide who's side I'm on.
Fair use is such a complicated concept in our legal system. It's left so intentionally vague that no two situations can truly approach the concept the same. It doesn't surprise me that this case has made its way all the way to the Supreme Court, especially since it will set a new precedent for fair use in art for decades to come. I think that's probably why Goldsmith is taking this all the way to the top, because it will have such national and industry-wide implications, changing the way this entire brand and trend of artwork is approached, constructed, and credited moving forward. I can definitely see the benefit in leaving fair use as a vague concept since it means that each case can be approached on a case by case basis to ensure maximum fairness for all parties, but it also can lead to these sorts of drawn out and uncertain situations where really no one seems to benefit.
Who knew the intricate legal issues around copyright in art? I remember teachers warning students about not just pulling images off of Google for their PowerPoint slides, but I did not realize the larger issues under this admonition. The internet has made it easier to both plagiarize art and to find plagiarized work. Esty is a prime example, where anyone can pull someone else’s design and stick it on a T-shirt. To me what is more frustrating is when large companies are able to steal an artist's work and reap large profits because the artist doesn’t have the resources to sue. The most important line in this article refers to the danger of lawyers and judges being left to decide about art concepts they don’t understand. The same discussion on difficult copyright laws is happening in music. I have a friend who is currently studying a legal degree in music.
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