Last Thursday, the United States Supreme Court ruled against the Andy Warhol Foundation in a case that raised the issue of whether Warhol's use of an image of Prince, taken by another photographer, was a violation of copyright.
In 1984, Vanity Fair commissioned Warhol to make an illustration for an article on Prince. It paid Lynn Goldsmith for a one-time use of an image she had taken of the musician in 1981 for Warhol to use as a visual reference. Warhol, who had a house in Montauk, went on to create a series of prints and two drawings based on the original work.
The magazine then used one of those silkscreens for a special edition magazine it published on the occasion of Prince's death in 2016. This time, Vanity Fair paid the Andy Warhol Foundation, which took over the artist's estate after his death in 1987. It did not pay Ms. Goldsmith or alert her of its use that time. As a result, she took legal action.
The 7-to-2 ruling may have sent a chill in artistic circles, particularly those who rely on legal interpretations of fair use to employ images created by others in their work. The decision, however, focuses on the image's use in two different instances for the same purpose, publication in a magazine.
According to the opinion, "The use of a copyrighted work may nevertheless be fair if, among other things, the use has a purpose and character that is sufficiently distinct from the original. In this case, however, Goldsmith's photograph of Prince, and A.W.F.'s copying use of the photograph in an image licensed to a special edition magazine devoted to Prince, share substantially the same commercial purpose."
Carol Steinberg, an attorney who specializes in art law and has a house in East Hampton, told The Star in reaction to the decision, "Ever since the Cariou v. Prince decision in 2013," a copyright case involving Richard Prince's appropriation of photographs by Patrick Cariou, a French photographer, "the courts have found an artist's copying of another creator's copyrighted work to be 'transformative' if it has a different aesthetic and meaning and therefore a fair use."
"The term 'transformative' has been overused, and the Supreme Court in this case is reining it in. When an artist creates work, she has the exclusive right to make an adaptation or variation of her own work," she continued.
"The takeaway for artists who appropriate remains that the work must have a different aesthetic and meaning, but it also must have a different purpose or use. The court found that even though Warhol's 'Orange Prince' may have had a different aesthetic than Goldsmith's photo, each was used in the same way -- that is, to illustrate a magazine article about Prince."
Ms. Steinberg will speak in more depth on the concept of what an artist is permitted to use from a previous artist's work at a program now in development by the East Hampton Arts Council and the Artists Alliance of East Hampton to be announced at a future date.
