Two Princes

Rulings in two copyright cases this week - both involving visual artists using images of musicians - are sure to have significant implications for artists working with appropriated material. 

The first involved US District Judge Sidney Stein refusing to dismiss two lawsuits against Richard Prince. Photographer Eric McNatt sued Richard Prince in 2016 over his use of a portrait of Sonic Youth’s Kim Gordon, originally commissioned by Paper magazine in 2014. Prince attempted the fair-use defence, which Stein rejected, noting that “the primary image in both works is the photograph itself” and asserting that “Prince has not materially altered the composition, presentation, scale, colour palette, and media.”

The case involving Andy Warhol is both simpler and more complicated. Warhol's work can more easily be viewed as 'transforming' the original, but the primary issue here involves intent. Both the original photograph (taken by Lynn Goldsmith) and Warhol's silkscreen were made to illustrate articles about the musician Prince. Warhol was commissioned by Vanity Fair and Goldsmith was paid $400 to license her original photograph. When Prince died in 2016, Vanity Fair ran a different image from the series in a commemorative issue, paying the Warhol estate ten grand, and Goldsmith nothing. 

Today the US Supreme Court today ruled 7-2 against the Warhol Foundation, overturning a New York federal district judge, who had ruled in favor of Warhol on the grounds that the work was sufficiently transformative and thus fell within the realm of “fair use.” 

Supreme Court Justice Sonia Sotomayor, writing for the majority, noted that “Lynn Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists.”

Both artists are significant to the copyright debate. In helping to shape the Pop Art movement, Warhol's use of existing imagery (Campbell's Soup Cans, Brillo Boxes, Mao, Marilyn Monroe, etc.) became some of the most iconic appropriations in the art world. Richard Prince's Untitled (Cowboy), a rephotographing of a cigarette advertisement, was the first rephotograph to be sold for more than a million dollars.

In December 2008, photographer Patrick Cariou filed suit against Prince for copyright infringement, in regards to a series of images of Rastafarians that Cariou had taken in Jamaica. In 2011, US District Judge Deborah A. Batts ruled against Prince, finding that the use by Prince was not fair use (his primary defence), and Cariou's issue of liability for copyright infringement was granted in its entirety.

Prince appealed and both the Warhol Foundation and the Robert Rauschenberg Foundation filed briefs in the case, siding with the artist and arguing that the intellectual content and aesthetic meaning of works of art are not always visible to the naked eye without art-historical context. The US Court of Appeals for the Second Circuit reversed Judge Batts's ruling, citing a 1992 Jeff Koons ruling (illustrating the importance of precedence in these cases). He stated that Prince's use of the photographs were transformative and thus fair use. 

Subsequently, much of Prince's work has almost seemed pointedly provocative from the standpoint of copyright. These include an entire exhibition of other people's Instagram posts and reprinting JD Salinger's classic 1951 novel, The Catcher in the Rye in its entirety (see earlier post, here). 

If today's Warhol ruling opens the floodgates of lawsuits, the Warhol Foundation's ability to provide grants to artists and institutions might be seriously hampered.