Andy Warhol, author of his work?

The Supreme Court of the United States must determine if its famous series are original works or if it should share the credit with the author of the originals

Andy Warhol (right) with Bianca Jagger and Jack Ford, at the White House in 1973. (GERALD R. FORD WHITE HOUSE PHOTOGRAPHS)

Hawk or dove? he wondered Pablo Abraira the late 1970s. A similar debate was faced on November 13 by the Supreme Court of the United States on behalf of one of the greatest authors (or phonies, depending on who you ask) of the 20th century: Andy Warhol. Are his famous series on Campbell’s soup, Marilyn Monroe or Mickey Mouse original works or simple restatements of previous authors whose contribution should be recognized? The history that has divided America’s leading court — and for once, not between conservatives and liberals — could play out with unpredictable consequences. What is at the bottom of the debate is what can be considered fair use [uso justo o legítimo] of another artist’s work.

To understand the controversy, we have to go back to 1981, when the photographer Lynn Goldsmith received the commission for the magazine Newsweek to make a series of portraits of the artist before (and after) known as Prince, for which he received 400 euros. The images were not published until four years later, when Vanity Fair bought the rights to one of the images (known as prince orange) and commissioned the Pittsburgh painter to use it to make one of his famous series with the author of Purple Rain as protagonist. The magazine used it to illustrate an article titled Purple Fame and, in fine print, credited Goldsmith. By the way, she didn’t even find out until a decade later.

But the real problem began in 2016, when the musician died and Vanity Fair decided to rescue another of the images created by Warhol. After paying $10,250 to the foundation that manages his legacy, he used it in a special issue dedicated to the artist’s work entitled The Genius of Prince. But this time the image was published without indicating the name of the author of the original, who at the time was already a legend in the world of photography with more than a hundred album covers and his work included in the collection of museums of the likes of the Smithsonian. Neither short nor lazy, the photographer claimed her part in court.

The first sentence came in 2019. The New York Federal Court determined that Warhol had transformed the photograph that served as the basis in such a way that it could be considered an original work. Goldsmith appealed and won. The Court of Appeal established that he deserved to charge since Warhol did not transform his image, he simply used it without altering its meaning.. So it was the Warhol Foundation for the Visual Arts that decided to appeal and now it is up to the Supreme Court to rule.

The “Orange Prince” object of controversy, as published Vanity Fair in 1985.

The underlying debate

The underlying debate is complex and probably not all art experts agree: does using an existing material in a new work transform it to the point of being considered original? Furthermore, to what extent —or from what point— is this transformation relevant? In other words, does Warhol’s intervention “add something new, with an additional purpose or a different character, altering the former with a new expression, meaning, or message”?

The Foundation alleges that this transformation occurs from the moment Warhol subjected the originals to a process that consisted of photocopying the original, changing the size and making screen prints using a silk mesh and applying new colors, in addition to giving them the final touch. with a brush. But the question is whether that changes the meaning of the image. ThenPainting Guernica in color to denounce its commercialization would no longer be Picasso’s to become a parody of a work from Malaga or the use that has been made of it?

As the journalist pointed out when the controversy broke out Sarah Cascone in artnet.comthe Supreme Court faced a similar case in 1994 when the singer’s estate roy orbison denounced that 2 Live Crew had used the mythical song beautiful woman without permission (the producer had refused) on the subject Oh Pretty Woman. The sentence established that being a parody that radically changed the meaning of the original.

Thus, the high institution ruled that it was protected by the doctrine of fair use, even assuming that there was an obvious commercial interest (a very important factor in the question of fair use). However, in the case of a photograph turned into a painting—Is Warhol’s Prince different from Goldsmith’s Prince?—the question is not so clear cut, and the implications are immense.

Photographer Lynn Goldsmith with her book “Rock and Roll Stories” in a promotional image.

From Sesame Street to Lord of the Rings

In a debate that did not last two hours, they talked about Sesame Street and of The Lord of the rings. The final decision will have important implications. For example Should a production company pay for the copyright of a book and give it credit if it is going to change what it wants to the point that many times the original text is almost unrecognizable? And then can a director take images from that film without paying a dollar and use it in a new one and claim that it is to redefine it?

For Jannie Suk Gersenof The New Yorker, the issue would also affect the Supreme Court itself, whose work is supported by jurisprudence. In this case, if he finds in Goldsmith’s favour, as it seems, he will depart from the existing doctrine. To do this you will need an “original” ruling as you did in the abortion case: the recent Dobbs v. Jackson Women’s Health Organization did not strike down the earlier Roe v. Wade of 1973, simply changed the focus of the problem and determined that the legislation on abortion rests with the states and not with the federal government.

The decision will be known in the coming weeks, but it may not be to everyone’s liking: Instead of settling the issue in favor of the Warhol Foundation or Golsmith, you could pronounce directly on the point of the doctrine of fair use in dispute and return the case to a court of another lower instance.

The complete Warhol series dedicated to the author of “Purple Rain” from the originals by Lynn Goldsmith.

Andy Warhol, author of his work? -Valencia City