{"id":16276,"date":"2023-06-10T15:52:47","date_gmt":"2023-06-10T22:52:47","guid":{"rendered":"https:\/\/art-for-a-change.com\/blog\/?p=16276"},"modified":"2023-06-10T15:52:47","modified_gmt":"2023-06-10T22:52:47","slug":"smackdown-supreme-court-vs-andy-warhol","status":"publish","type":"post","link":"https:\/\/art-for-a-change.com\/blog\/2023\/06\/smackdown-supreme-court-vs-andy-warhol.html","title":{"rendered":"Smackdown! Supreme Court vs. Andy Warhol"},"content":{"rendered":"

Photographer Lynn Goldsmith\u2019s 1981 black and white photo of Prince was made just as the talented young singer-songwriter-musician was on his way to super stardom. Goldsmith\u2019s portrait captured a moment in time with the genre-defying musician. She caught the soulfulness of the man on film.<\/p>\n

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\u201cPrince.\u201d Portrait photograph by Lynn Goldsmith \u00a9 1981.<\/figcaption><\/figure>\n

On May 18, 2023 the Supreme Court issued a momentous smackdown<\/a> to the ghost of Andy Warhol, the Andy Warhol Foundation, legions of Warhol fans, and the postmodern art world. The court case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith<\/em><\/a>, posed the question, did Warhol violate the copyright of Goldsmith by using her photo to create his 1984 \u201cPrince series\u201d of 16 silkscreen prints?<\/p>\n

The Supreme Court ruled YES in a 7-2 landmark ruling that Warhol committed copyright infringement against Goldsmith. The ruling will have a huge impact on a contemporary art scene that has formed an unhealthy addiction to so-called \u201cappropriation art,\u201d or what sane people call plagiarism. There are those who call the decision an \u201canti-artist ruling<\/a>.\u201d As a working artist, I think that\u2019s nonsense.<\/p>\n

I support the \u201cfair use\u201d doctrine as applied to art. However, the idea of it being permissible to use portions of existing artworks to make new \u201ctransformed\u201d imagery has became a crutch for artists who regularly appropriate the works of others. Today\u2019s art as been subsumed by an infinite amount of poor quality appropriations. Artists should strive for originality and leave the cheap duplicating behind.<\/p>\n

The Supreme Court majority opinion was written by the court\u2019s liberal Justice Sonia Sotomayor, who stated: \u201cGoldsmith\u2019s original works, like those of other photographers, are entitled to copyright protection, even against famous artists<\/em>.\u201d She went on to remark that the majority ruling will not \u201csnuff out the light of Western civilization, returning us to the Dark Ages.\u201d<\/p>\n

Liberal Justice Elena Kagan wrote the minority opinion. Along with conservative Chief Justice Roberts the two comprised the minority. Oh the irony\u2014Sotomayor and Kagan are liberal Barack Obama nominees. In her dissent Justice Kagan said of the majority opinion:<\/p>\n

“It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.”<\/p><\/blockquote>\n

How did Warhol (1928-1987) make an \u201cexpression of new ideas\u201d by pilfering Goldsmith\u2019s photo of Prince? Warhol simply printed Goldsmith\u2019s photo in various colors. Seems to me Warhol\u2019s endless plagiarizing made \u201cour world poorer.\u201d And yes, he had a record of plagiarizing the works of others.<\/p>\n

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The “Hibiscus Flowers” photograph by Patricia Caulfield appeared in Modern Photography magazine as a fold-out photo.<\/figcaption><\/figure>\n

In 1964 photographer Patricia Caulfield was editor of the popular Modern Photography magazine. In a June 1964 issue the monthly published a photo of hibiscus flowers credited to Caulfield. Without permission Warhol used the photo to produce a series of silkscreen prints he titled Flowers<\/em>.<\/p>\n

Warhol printed five editions of Flowers<\/em>, all in different sizes; the smallest prints were five inches square, the largest 48 inches square. These were displayed in his premier 1964 exhibit at the Leo Castelli gallery in New York City.<\/p>\n

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“Flowers.” Andy Warhol. Silkscreen. 1964.<\/figcaption><\/figure>\n

Caulfield learned of Warhol’s thievery and in 1966 filed a lawsuit against him for the unauthorized use of her photo. She won the case and was paid $6,000 in compensation, guaranteed royalties on future sales, and assured that future descriptions of Flowers<\/em> would credit her authorship of the original photo.<\/p>\n

But Caulfield’s court victory didn’t stop Warhol\u2019s pilfering ways.<\/p>\n

After the 1963 assassination of President John F. Kennedy, Warhol clipped a photo from Life magazine showing First Lady Jacqueline Kennedy wearing a black veil at the funeral. The photo was taken by Henri Dauman<\/a>, a top feature photographer for Life magazine, a Time Inc. publication.<\/p>\n

In 1996 Dauman read in the New York Times that Warhol sold a print titled Sixteen Jackies<\/em> for $418,000. The article included a reproduction of the artwork and Dauman realized Warhol, without permission, had used his photo of Jacqueline Kennedy to create the Sixteen Jackies<\/em> series; Warhol not only used Dauman\u2019s photo, but other Life magazine photos of the funeral as well.<\/p>\n

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“Sixteen Jackies.” Andy Warhol. Silkscreen. 1964.<\/em><\/figcaption><\/figure>\n

In 1996 Dauman and Time Inc. sued the Andy Warhol estate, the Andy Warhol Museum, and the Andy Warhol Foundation for copyright infringement. Dauman and Time Inc. settled the case out of court for an undetermined amount. A lawyer close to the case said it was “several hundred thousand dollars.”<\/p>\n

Even after all that, in 2006 Christie\u2019s auction house sold a silkscreen on canvas version<\/a> of Warhol’s Sixteen Jackies<\/em> for $15,696,000. An essayist at Christie\u2019s had the temerity to describe the work as “one of Warhol’s great achievements.” At a 2021 auction at Sotheby\u2019s a Sixteen Jackies<\/em> silkscreen print sold for $39.9 million. I’m not certain if Mr. Dauman\u00a0 received any royalties from the sale.<\/p>\n

As far as art goes, turning \u201cout the light of Western civilization\u201d and plunging us into the new \u201cDark Ages\u201d has become an ongoing trend. When did plagiarism become accepted artistic practice? When did art schools stop teaching realistic drawing and painting? When did beauty, craft, and skill become exiled from the art world? I know it\u2019s heretical to say, but… when did we surrender standards?<\/p>\n

Goldsmith\u2019s photo of Prince came from a 1981 photo shoot she did with the rocker for Newsweek. In 1984 Vanity Fair licensed one of Goldsmith\u2019s photos for $400. It was to be used only once\u2014as a \u201creference photo\u201d for an illustration created by an artist for a Vanity Fair story on Prince. The license stipulated that the photo would not be used for any other purpose. The magazine failed to tell Goldsmith that Andy Warhol would be the illustrator.<\/p>\n

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“Purple Prince” posted on Twitter by the Andy Warhol Museum<\/a>. Note “copyright” attributed to the Andy Warhol Foundation.<\/figcaption><\/figure>\n

Warhol created his illustration based on Goldsmith\u2019s photo, it was a purple colored silkscreen of Prince, and Vanity Fair published his artwork with an accompanying article in its Nov. 1984 issue\u2014giving credit to Goldsmith for the photo. Except… Warhol didn\u2019t produce a single silkscreen of Prince in 1984, he created an entire suite of sixteen silkscreen prints in different colors; prints Warhol called his Prince series. And all without Goldsmith\u2019s knowledge.<\/p>\n

Warhol died in 1987, and almost all of his works went to the Andy Warhol Foundation for the Visual Arts.<\/p>\n

Prince died in 2016. After his passing the owner of Vanity Fair, Cond\u00e9 Nast, contacted the Warhol Foundation with a request to use Warhol\u2019s 1984 Vanity Fair Purple Prince silkscreen print in a special commemorative issue on the life of Prince. The foundation offered Cond\u00e9 Nast any silkscreen from Warhol\u2019s Prince series, so they chose the Orange Prince<\/em> print. The foundation licensed it to Cond\u00e9 Nast for $10,000. Goldsmith didn\u2019t receive a penny from the licensing.<\/p>\n

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Cond\u00e9 Nast “The Genius of Prince” Special Commemorative Edition magazine, 2016.<\/figcaption><\/figure>\n

Wait, it gets worse. Lynn Goldsmith learned of the malfeasance when she saw the Orange Prince<\/em> as the Cond\u00e9 Nast magazine cover, along with it illustrating the publication\u2019s article titled Purple Fame. She recognized it as her photo, but not the Purple Prince serigraph she had licensed! Goldsmith had no idea that Warhol had created 16 silkscreens from her photograph.<\/p>\n

Goldsmith contacted the Andy Warhol Foundation to register a complaint that her copyright had been violated. Rather than resolving the problem in a civilized manner, the foundation SUED Goldsmith<\/a> in April of 2017, claiming she was trying to extort the foundation. Goldsmith, protecting her rights, countersued.<\/p>\n

In July of 2019, Judge John Koeltl of the New York federal court threw out Goldsmith\u2019s lawsuit. Needless to say the Warhol Foundation and fans of appropriation art were giddy with joy. Koeltl supported the Andy Warhol Foundation by ruling Warhol had made \u201cfair use\u201d of Goldsmith\u2019s photo. But the judge made what I thought was an odd justification for his finding:<\/p>\n

\u201cThe Prince series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith\u2019s photograph is gone.<\/p>\n

Moreover, each Prince series work is immediately recognizable as a \u2018Warhol\u2019 rather than as a photograph of Prince, in the same way that Warhol\u2019s famous representations of Marilyn Monroe and Mao are recognizable as \u2018Warhols,\u2019 not as realistic photographs of those persons.\u201d<\/p><\/blockquote>\n

According to Judge Koeltl, Warhol succeeded in removing \u201cthe humanity Prince embodies\u201d from Goldsmith\u2019s photo. A powerful, if unintended repudiation of Warhol\u2019s work and postmodern art in general.<\/p>\n

Goldsmith vowed to appeal the court decision and continued her battle against the Andy Warhol Foundation. She told the press: \u201cI know that some people think that I started this, and I\u2019m trying to make money. That\u2019s ridiculous, the Warhol Foundation sued me first for my own copyrighted photograph.\u201d<\/p>\n

Goldsmith took her case to the US Court of Appeals for the Second Circuit, and that court REVERSED the 2019 ruling of Judge Koeltl. In March of 2021 the 2nd Circuit Court of Appeals found that Warhol\u2019s Prince series did not<\/em> transform Goldsmith\u2019s photo. The court stated \u201cthe Prince series of works are substantially similar to the Goldsmith photograph as a matter of law,\u201d and so Warhol\u2019s silkscreens could not be considered \u201cfair use.\u201d<\/p>\n

The Warhol Foundation appealed, and because appeals from the 2nd Circuit Court are heard by the Supreme Court of the United States, that\u2019s where the case went. As the reader now knows, on May 18, 2023 the Supreme Court ruled in favor of Goldsmith, finding that Warhol had violated the photographer\u2019s copyright when he swiped her photo to make his Prince series.<\/p>\n

The 1964 Marilyn Monroe<\/em> series was Warhol\u2019s most iconic silkscreen prints, but the photo Warhol utilized to produce the prints was snapped by American photographer Gene Korman (1897-1978). Korman worked in the Hollywood movie industry from the 1920s to the late 1950s, taking photographs for promotional purposes, but also creating glamour photos of upcoming or established stars.<\/p>\n

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“Marilyn Monroe.” Gene Korman. Photograph \u00a9\u00a01953.<\/figcaption><\/figure>\n

Korman took his photograph of Marilyn Monroe (1926-1962) as a promotional image for the 1953 film Niagara<\/em><\/a> from 20th Century Fox. It was the first movie to give Monroe top billing as lead actor.<\/p>\n

In 1964 Warhol purloined Korman\u2019s photo of Monroe, cropping the image to focus on her face. He never sought permission for the photo\u2019s usage, it certainly wasn\u2019t licensed to him. He never paid Korman for the image. The photo was simply stolen and colorized in silkscreen by Warhol. On May 9, 2022 Christie\u2019s auction house sold one of Warhol\u2019s Monroe prints<\/a> for $195 million. Korman\u2019s estate did not receive any royalties from the sale. This is an example of the \u201cexpression of new ideas\u201d Justice Kagan wrote about.<\/p>\n

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“Shot Sage Blue Marilyn<\/a>.” Sold at Christie’s for $195 million.<\/em><\/figcaption><\/figure>\n

Justice Kagan likely never wondered how Korman must have felt watching Warhol raking in the greenbacks with his original photo of the late Monroe. Thanks to dollardom and its poison publicity machine, the public at large knows all about Andy Warhol… but has never heard of Gene Korman.<\/p>\n

Media reports on the Goldsmith vs Warhol dispute referred to Warhol\u2019s prints as \u201cpaintings.\u201d But painting is not just applying paint to a flat surface, if so then art critics should start reviewing house painters. An artist makes prints with silkscreens, not paintings.<\/p>\n

News accounts also suggested Warhol produced his illustration for Vanity Fair\u2014and later on made his Prince series prints. This is a misunderstanding of screen printing. Artists don\u2019t go through the intensive labor process of creating a silkscreen print, just to create a single copy. Silkscreen is a process that creates multiples.<\/p>\n

Traditional screen printing utilizes fine-mesh silk stretched tightly over a wooden frame and stapled in place. That silk \u201cscreen\u201d is the surface where the artist creates a stencil, which can be painted on, drawn by hand, or even made of cut paper. A stencil blocks the passage of paint through the screen. The wood frame holding the screen is hinged to a larger board, and lowered onto a pre-positioned sheet of paper. Paint pulled across the screen by hand with a rubber bladed squeegee, forces paint though the silk. Lift the screen and there\u2019s the print!<\/p>\n

Over time there have been technical innovations in screen printing; frames of aluminum, photo emulsions, screen chemicals, and polyester mesh screen are now standard fare, but the old low-tech tools work just fine in delivering complex, multicolored prints.<\/p>\n

Warhol made silkscreen prints with basic techniques, postmodern methods, and late 20th century technologies. In 1963 he infamously said “I want to be a machine,” a comment referring to silkscreen\u2019s mechanical precision in producing multiples. The media, especially the art press, tout Warhol for never being without a camera, but they avoid discussing his dark room tricks.<\/p>\n

Warhol used Kodak\u2019s \u201cKodalith\u201d film to reproduce Goldsmith\u2019s Prince photograph as a high contrast black and white photo without gray tones. That image was converted into a dot pattern, printed on acetate, and burned onto a screen with photo-emulsion, making a stencil for screen printing. With stencils that would overprint Goldsmith\u2019s image onto screened fields of color, Warhol produced the 16 prints of his Prince series. He made all of his silkscreens in this manner.<\/p>\n

Supreme Court decision and Warhol\u2019s plagiarism aside, there\u2019s a new ominous threat thundering towards artists like a train without brakes… Artificial Intelligence<\/em> (AI). Nowadays to create art, non-artists and professional artists alike are using generative AI computer programs like Stability AI, DreamUp, DALL\u00b7E 2, Midjourney and Stable Diffusion. But that is another essay.<\/p>\n

Over the years I have written several broadsides about the artist; rebukes like Warhol\u2019s $11.7 Million Dollar Soup Can<\/em><\/a>, 200 One Dollar Bills<\/em><\/a>, and Andy Warhol is Still Dead<\/em><\/a>. Read those essays to fully grasp what I really think about Warhol.<\/p>\n

I was never a Warhol fan, not in the 60s when his \u201clegendary\u201d New York City art studio The Factory<\/em> was ground zero for deep-pocketed socialites, affluent celebrities, and fauxhemian subculturalists. And certainly not in the 21st century when art world gatekeepers viewed him as an omnipotent cash cow. All that\u2019s left is Warhol\u2019s famous deadpan quote: “making money is art and working is art, and good business is the best art.”<\/p>\n

Maybe the Supreme Court exposed Andy Warhol as being more of a charlatan than an artistic genius, one can only hope.\u00a0But what do I know, I\u2019m just an artist… not a Supreme Court judge.<\/p>\n","protected":false},"excerpt":{"rendered":"

Photographer Lynn Goldsmith\u2019s 1981 black and white photo of Prince was made just as the talented young singer-songwriter-musician was on his way to super stardom. Goldsmith\u2019s portrait captured a moment in time with the genre-defying musician. She caught the soulfulness of the man on film. On May 18, 2023 the Supreme Court issued a momentous smackdown to the ghost of…<\/p>\n","protected":false},"author":3,"featured_media":16312,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_kadence_starter_templates_imported_post":false,"_kad_post_transparent":"default","_kad_post_title":"default","_kad_post_layout":"default","_kad_post_sidebar_id":"","_kad_post_content_style":"default","_kad_post_vertical_padding":"default","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"_kad_post_classname":"","wds_primary_category":0,"footnotes":""},"categories":[50,4],"tags":[],"class_list":["post-16276","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-american-art","category-postmodernism-remodernism"],"acf":[],"_links":{"self":[{"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/posts\/16276","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/comments?post=16276"}],"version-history":[{"count":0,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/posts\/16276\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/media\/16312"}],"wp:attachment":[{"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/media?parent=16276"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/categories?post=16276"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/art-for-a-change.com\/blog\/wp-json\/wp\/v2\/tags?post=16276"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}