Responses to the U.S. Supreme Court decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith have ranged from "sky is falling" hysteria to sober analysis of the very specific criteria of the decision.
Artists or other creative people might have been left scratching their heads in the wake of those reactions, wondering how the decision, which involved Andy Warhol's use of a photograph Lynn Goldsmith took of the rock star Prince, might affect their practice.
In a talk next Thursday at the East Hampton Library, Carol Steinberg, an attorney and expert in art law, hopes to clarify what that specific case means for artists. She also plans to address the minefield of copyright law in general and how it affects both artists wishing to use recognizable source material subject to copyright in their work as well as how they can protect themselves from copyright infringement involving their own art.
The talk, which is sponsored by the East Hampton Arts Council and the Artists Alliance of East Hampton, is titled "Creators and Appropriators: What the Warhol v. Goldsmith Supreme Court Decision Means for All Creatives."
Addressing copyright law by phone recently, Ms. Steinberg said that "people want to know and then some people don't even realize that they need to know" about it. "But it is the same question I get everywhere, even from lawyers who aren't art lawyers, but have become artists." They might have a photograph of someone else's work and want to change it and include it in a painting, and ask her if that is okay to do. "They think it's a one-minute conversation, and it's not."
The Warhol case is important, she said, because it will have the effect of reining in the frequency of "transformative use" overriding other considerations in legal determinations of whether a work that uses material created by someone else violates copyright law.
A quick refresher for those who may not have followed the Warhol case: Lynn Goldsmith took photographs of Prince in 1981. "Then in 1984, Vanity Fair was going to do an article about Prince, who was becoming really famous and hot. It entered into a contract, a licensing agreement, with Goldsmith to use one of those photographs as a reference, a one-time use."
The magazine then hired Andy Warhol to make a silkscreen portrait using her photograph as source material, and "that's all fine," Ms. Steinberg said. But when Prince died, the magazine went straight to the Warhol Foundation to license one of the resulting Warhol images to print again. The foundation received $10,000, and Ms. Goldsmith received nothing, "instead of her getting 400 bucks before. And they didn't credit her and they didn't get her permission."
"What the case is about is that the contract was a one-time use, and they violated the contract." She said Justice Sonia Sotomayor "makes really clear that's what it is."
Some reactions to the case have been "creativity is dead, or, you know, this case means the end of art as we know it." And that response is "completely crazy because -- and she actually said this -- this is not even to say that Warhol's artwork is not transformative. It's only talking about this use." So, for a "Warhol hanging in a gallery or hanging in someone's home or an auction house, the case has nothing to do with that."
She offered an example of how transformative use can be applied in the case of two biographies. In one case, a biography is used as the basis for a film script, say Walter Isaacson's biography of Steve Jobs that was the source for a 2015 film. Since it was adapted from material that was copyrighted, that material was licensed, even though Aaron Sorkin wrote the script. Simply making a film from the material was not transformative in terms of the law.
In the case of Lin-Manuel Miranda's "Hamilton," he licensed Ron Chernow's biography of Alexander Hamilton, but Ms. Steinberg said he probably didn't need to since the play "is clearly transformative. It's a completely different, new aesthetic. It's a matter of degree, but that's an example of something that's really transformative." She said to be transformative, something has to be really new and different in a way that benefits the culture.
While there are obvious examples, what constitutes a transformative use can be murky. Ms. Sotomayor's ruling is based on how the image was used in this specific case, which made the decision more precise. "She's not saying that Andy Warhol's work is not transformative. She probably would say that it is," but she did not see that as what was before her in this case.
"I think that she's trying to rein in this overuse of transformative use, its repetitiveness" in these kinds of cases, Ms. Steinberg said. "The problem with fair use always is . . . there's nothing that clear-cut, there is no rule."
She added that in her courses at the School of Visual Arts, she teaches students the four factors that determine whether something is considered fair use -- the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market -- and then "I just give them ideas about cases which they can use as guidance."
Although fair use has these defined factors, "there's no easy answer for it. And that's really tough for the creator."
The library talk, which she promises will be in plain, non-lawyerly language, will give artists in all mediums resources to protect themselves from infringement. She will also describe the legal landscape for people who use appropriation in their creative practice. It begins at 6 p.m. and registration information is on the library's online calendar of events.
Ms. Steinberg will also speak over Zoom for the New York Foundation for the Arts on Sept. 21 at 2 p.m. about the recently created copyright small claim forum. It's a place where people can bring copyright cases without lawyers for claims up to $30,000.
"And that's really important for people to know about too, because then you know, if you're not really rich, you can't afford a lawyer to bring a case."
Registration is on the foundation's website. The talk is pay what you wish.
