Op-Ed in Artnet an example of Fair Use

At Artnet, two professors contributed an Op-Ed piece.  In it, Prince, Warhol, and Google are mashed together to argue the wrong points on Fair Use.

Christopher Sprigman & Kal Raustiala, supposedly two esteemed professors, present an opinion on why the Goldsmith vs Warhol Case (The Warhol Foundation) should be Fair Use vs a commercial breach of copyright ownership.

Towards the end of their pitch, they state:

On a technical level, the changes may seem modest: Warhol cropped Goldsmith’s photograph and removed some of the humanizing details. He then boldly outlined Prince’s face against various brightly colored backgrounds. But to our eyes, the Warhol work just communicates an entirely different feeling than the Goldsmith photograph. The Goldsmith photo is a portrait. The Warhol works are a sort of religious iconography: They place Prince in the American pantheon.

Site Fact:

Earlier they refer to the Google vs Oracle copyright infringement case decided on by the U.S. Supreme Court.  They believe it is the clear answer for an overturn of Goldsmith’s lower court victory.

Google ripped off Oracle.  It’s fairly clear.  Without Oracle’s initial code, Google’s subsequent addition to the Oracle code would never have been possible.  In Google’s case, they added code to create a new application called Android.  Oracle deserved to be compensated.  Like the actual Alphabet, there can not be a Z if A did not come first.   Did Google acknowledge Oracle in its code?  Did Oracle allow its code to be built upon?

Over at Vanity Fair:

To get “A,” Vanity Fair paid Goldsmith for a photo of Prince in 1984 (The creator of “Let’s Go Crazy, 1984“, shown above).  In Goldsmith’s case, her career (time, camera equipment, travel expenses, her years of experience in asking for people to sit in front of her lens or her money spent to purchase tickets to attend rock and roll concerts so she could have a worthy photography portfolio), led ultimately to her photograph of Prince (actually shot in 1981).  She was compensated with a one-time payment of $400 from Vanity Fair.

Her desire to accept $400 was linked to Vanity Fair’s editors trying to create a publishable story.  They subsequently hired another artist, Warhol, who used Goldsmith’s work for their article.  Their distribution and readership should have given Goldsmith the likely needed exposure to extend her professional career.  She should have received more assignments because people responded to her stunning photograph.  It is reported that in 1984 Vanity Fair did credit Goldsmith for her base photograph that was “appropriated” by Warhol.  His style had already become significant – not hers alone.

The esteemed professors called it “…religious iconography…” and therefore Warhol was enabled to rip off Goldsmith’s idea and physical work.  Warhol was already at the end of his career.

At the heart of copyright is ownership and compensation for that ownership. Today we have technology mixing with art trying to solve copyright compensation issues. That purported solution is the much-hyped world of NFTs.

In the Public Domain:

When advertisements are placed in the public domain, for example, painted on the public sidewalk in front of Vanity Fair’s corporate headquarters, individuals are forced to view an ad.  These ads were placed to inform.  They were placed for commercial gain.  They were placed without compensating the public for the public’s use of a sidewalk or for the time to read the advertisement.  The sidewalk had to be built and paid for by the public’s taxes and hence the materials needed to be combined to make first the sidewalk useable.  The public never envisioned that ad or, if you like, an Uber/Lime scooter to sit in the public’s domain (parks, greenways, sidewalks) without being paid.

Yet the Professors’ claim that Warhol was justified because he was merely Warhol, is laughable.   Warhol had Fair Use of Goldsmith’s photograph because, at the end of his advertising and professional career, he was respected enough and known for his style and marks.

Warhol clearly copied Goldsmith’s photograph.  He may have added color to Prince’s face.  He cropped the image down to a different size than what Goldsmith had provided to Vanity Fair.  He substantially changed her work to be his own.  Vanity Fair hired Warhol to do what he was known.  In the ’80s his art was already known for a style.  He had already risen to the top of “pop” in his category.   The one which Prince furthered with every note sung to become Prince.  Warhol was dependent on Prince as much as Prince was dependent on Goldsmith to be included in the commercially paid-for publication called Vanity Fair.  Vanity Fair hired these artists to make money.  They did not hire the artists so their publication could be read for free in a library.

The context in which Goldsmith sold her skills is what is important.  She sold a photograph to Vanity Fair.  She likely figured it would simply be used as a photograph.   She had no idea that someone else would take her photograph and make it into something other than a photograph.  Appropriation by copyright standards is to substantially change an entity enough that no one can confuse the original from the subsequent creation.  To do so without consent is artistically encouraged as Fair Use.   Goldsmith did not give Warhol the direct right to use her image in a painting.  Vanity Fair had to obtain Prince’s acceptance to be photographed.

This is a Campbell Soup Can case.  Warhol’s skills to create from the photograph a new work, not a photograph, is distinct and different.  No one can confuse the works.  When, like Artnet and the professors, use a side-by-side comparison of the two works, everyone can see how Goldsmith was the inspiration.  She should have been credited and compensated by at least Warhol and at most by Vanity Fair.

The Point:

Goldsmith received her compensation for a photograph; she did not give Vanity Fair the right to have her work reinterpreted without compensation or even notification.  Warhol did not give her credit or payment for his use of her work.  He simply became “inspired” by her work and reinterpreted it.  If Goldsmith did not have a voice, no one would have known that Warhol had appropriated it from her.  Goldsmith is due compensation.  The professor’s academic critique sides with the Supreme Court Google case.  They fail to uphold the commercial right that copyright is intended.  Fair Use avoids monetary compensation in the name of progress.  Android was progress when Oracle could not figure out how to apply its knowledge for a different use, like mobile.   Warhol was capable with a camera; yet he was not the one to create the image of Prince.  He bet that his style would be preferred to Goldsmith’s.  His compensation offered, indirectly at a minimum, was Goldsmith’s 15 minutes of fame.

The Goldsmith case has meaning because it discredits how effectively companies like Google have become dominant. Google’s success originated by adding value to “customer’s” websites.  Because of their terms of service, they ultimately dominated the web through “free use” of their snippet of code while giving non-related websites a visitor counter.  Google would have never become the dominant search engine if websites didn’t accept the use of website counters.  Google would never exist today if sites did not allow the data to be collected by the counters.  Goldsmith did not accept Warhol’s offer to appropriate her work – it was never an option for her.


“Two legal experts explain why a recent U.S. Supreme Court ruling in favor of Google should inform the way courts think about art.”

Source: Why Andy Warhol’s ‘Prince Series,’ the Subject of a Long-Term Copyright Dispute, Should Be Considered Fair Use After All | Artnet News

Author: Mason Hayutin

Founder, Editor and contributing writer, Mr. Mason Hayutin is recognized for his depth of experience and knowledge in technology, energy economics, real estate and the arts (fine and visual). Having worked with recognized world-class artists and their estates since 1997, Mason brings a wealth of practical experiences from installations, marketing, and private sales. An active business advocate, he successfully released the fine art documentary film LUBIE LOVE in 2009 ahead of the global auto crisis - in addition to maintaining his tenure at GALLERY M INC. Hayutin holds a degree in Economics from Washington University in St. Louis. He is the founder of MASONmodern, a boutique real estate firm based in Denver, CO. You can read his insight here at The Art Quarterly as well as in regional and national publications.

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