/ Andy Warhol versus Lynn Goldsmith

Wednesday, March 30, 2022
10:19 pm CET
By Ronny Waburek

Who May Call Himself a Creator?

The Supreme Court Decides a Critical Question

Wednesday, March 30, 2022, 10:19 pm CET
By Ronny Waburek

Andy Warhol

Andy Warhol

Jeff Koons and Richard Prince have already had their experiences with this. As soon as artists use the works of other artists as raw material, the question arises as to whether this is still "fair use. The question of who copies from whom is as old as art itself. And the fact that we are in the copy-paste age has long been the subject of many concepts in contemporary art.

Increasingly, however, it seems, this question is also occupying the courts. The Warhol case, again making headlines in the press, is of particular importance. The media's interest is further fueled by the fact that Netflix has just released a documentary series about Andy Warhol. The auction house Christie's is planning to auction off a painting by Marylin Monroe.

One painting or even an entire series: After decades Lynn Goldsmith is suddenly surprised

Specifically, the Supreme Court is now to clarify whether Warhol violated copyright. A legal dispute between the Andy Warhol Foundation and the photographer Lynn Goldsmith is being examined. In 1984, Warhol used a photograph of the pop star Prince for the "Princes Series" paintings from Goldsmith. The magazine "Vanity Fair" had asked Warhol for this work, with which it illustrated a portrait of the musician, and also obtained permission from the photographer. But without asking, Warhol immediately produced an entire "Prince Series": 15 brightly colored silkscreens. Goldsmiths allegedly knew nothing about using the photo for a whole series. It was only decades later that she spoke out. It is already clear that the decision will have far-reaching consequences depending on the court's verdict.

This immediately brings back memories: Damien Hirst showed the mammoth exhibition "Treasures from the Wreck of the Unbelievable" during the Venice Biennale. Among the exhibits was the bronze casting of a head, which with its longitudinal stripes referred directly to the art of the Nigerian Ife. The artist of the Nigerian pavilion Victor Ehikhamenor got the message. He posted on Instagram that the British were stealing the Nigerians' culture for the second time after 1897. An extensive shitstorm followed.

How much copy is there in art?

The copy-paste principle is part of Warhol's essential art concept. He had long worked with photos from the media, which he took over, printed, enlarged, and colored. Ultimately, he was interested in holding up a mirror to the media world. And he also saw himself as part of a long artistic tradition. Marcel Duchamp made a significant contribution to the shift in meaning. The artist determines what art is. All artists in the tradition of Warhol also copy diligently and yet create something new out of it. The new doesn't have to be directly visible in the work of art; this new can also be expressed in the artist's attitude.

For a judge, this is too little. Courts like to stick to facts and clear rules. And so, two worlds regularly collide in the courtroom, where neither understands the other. And that's how the legal battle between the Andy Warhol Foundation and Goldsmith finally began in 2017.

A "recognizable foundation": Will the court now decide what is art? 

The Andy Warhol Foundation had sued the photographer to get ahead of Goldsmith. The intention was to clarify that Warhol had not committed copyright infringement. The Andy Warhol Foundation won the lawsuit in 2019. However, Goldsmith appealed and was, in turn, granted justice in 2021. The 2nd Circuit Court of Appeals based the decision on the fact that Goldsmith's photo was a "recognizable foundation" for the paintings. Astonishingly, the judge passed judgment on the quality of Warhol's portraits, claiming that Warhol had not altered Goldsmith's photograph in a "transformative" way, but only in terms of color. The Andy Warhol Foundation is now seeking a reexamination of the verdict.

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Ronny Waburek
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