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| Version 5 | Version 6 |
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| The Supreme Court Is Wrong About Andy Warhol | The Supreme Court Is Wrong About Andy Warhol |
| (about 7 hours later) | |
| The Supreme Court got it wrong. | The Supreme Court got it wrong. |
| In a recent 7-to-2 decision, the court ruled that Andy Warhol infringed on Lynn Goldsmith’s copyright when, in 1984, he used her photograph of the pop star Prince as the source image for a series of silk-screen portraits. From a legal standpoint, the ruling was relatively narrow: it focused on the fact that the Warhol Foundation had licensed Warhol’s “Orange Prince” for reproduction in a magazine, the same purpose Goldsmith set for the original photograph. She was, therefore, owed part of that licensing fee. | In a recent 7-to-2 decision, the court ruled that Andy Warhol infringed on Lynn Goldsmith’s copyright when, in 1984, he used her photograph of the pop star Prince as the source image for a series of silk-screen portraits. From a legal standpoint, the ruling was relatively narrow: it focused on the fact that the Warhol Foundation had licensed Warhol’s “Orange Prince” for reproduction in a magazine, the same purpose Goldsmith set for the original photograph. She was, therefore, owed part of that licensing fee. |
| As an art historian and Warhol scholar, I was asked to write an amicus brief on behalf of the Foundation. I argued that Warhol’s portraits transformed Goldsmith’s photograph (in scale, composition, medium, color and overall visual effect) to such a degree that they qualified as “fair use,” a doctrine that, in the name of freedom of expression, allows the adaptation of copyrighted materials under particular conditions. | As an art historian and Warhol scholar, I was asked to write an amicus brief on behalf of the Foundation. I argued that Warhol’s portraits transformed Goldsmith’s photograph (in scale, composition, medium, color and overall visual effect) to such a degree that they qualified as “fair use,” a doctrine that, in the name of freedom of expression, allows the adaptation of copyrighted materials under particular conditions. |
| There is much about Warhol and the question of originality, however, that I left out of my brief. Now that the case has been decided, I can share what I did not say to the Supreme Court. Most conspicuously, I did not say that fair use, while necessary as legal doctrine, does nothing to help us understand Warhol’s art. | There is much about Warhol and the question of originality, however, that I left out of my brief. Now that the case has been decided, I can share what I did not say to the Supreme Court. Most conspicuously, I did not say that fair use, while necessary as legal doctrine, does nothing to help us understand Warhol’s art. |
| Throughout his career, the artist was concerned not with copyright but with the right to copy, which he saw both as a creative method and a design for living. | Throughout his career, the artist was concerned not with copyright but with the right to copy, which he saw both as a creative method and a design for living. |
| In a 1963 interview, Warhol remarked, “I think somebody should be able to do all my paintings for me.” While he did not outsource all of his paintings, he frequently got friends and assistants to fulfill some part of the artistic process, whether printing, cropping, titling or even conceiving of his work. “I was never embarrassed,” he once commented, “about asking someone, literally, ‘What should I paint?’ because Pop comes from the outside” — meaning it arose from external ideas and images rather than from the artist’s unique vision. “And how is asking someone for ideas any different from looking for them in a magazine,” Warhol said. | |
| His reliance on outside sources extended well beyond his art. When he tired of being himself, Warhol sometimes asked others to step into the role. In 1967, he hired the actor Allen Midgette to appear as Warhol on a national lecture tour. When, after the first few lectures, the ruse was exposed, Warhol responded, “He was better at it than I am.” From the artist’s perspective, Midgette was not only better at delivering remarks and answering questions from a public audience. He was better at being Warhol. |