Ruling Against Warhol Shouldn’t Hurt Artists. But It Might. (2023)

The artist Eric Doeringer remembers that his mother was worried, last year, when the Supreme Court took up a case about Andy Warhol’s right to use someone else’s photograph to make his own silk-screened image of the pop star Prince. As one of Warhol’s most committed descendants, Doeringer makes “appropriation art” that most often copies images made by other artists — including, often, by Warhol himself — so his mother wondered what might be in store for her son (now 48) if the court ruled that Warhol’s signature move had been out of line all along.

Museums and artists’ foundations shared her concerns, as some had expressed to the court. A judgment against Warhol, said one of their early briefs, might expose “artists, as well as the institutions that display their works, to new and dramatically expanded liability for copyright infringement.” It even threatened to impose “a deep chill on artistic progress, as creative appropriation of existing images has been a staple of artistic development for centuries.”

For many in the art world, including this critic, that chill seemed to have arrived early Thursday, when a seven-justice majority released its ruling that Warhol should not, in fact, have used a Lynn Goldsmith photograph of Prince to his own creative ends.

In its decision, the court said that in 2016, when the Pop artist’s heirs at the Andy Warhol Foundation licensed his silk-screened version of Goldsmith’s shot to Condé Nast after the artist’s death, they didn’t have the right to use the image without paying her. A lower court will now get to decide what she is owed by the foundation.

However, on close reading of the court’s 39-page decision, written by Justice Sonia Sotomayor, Warhol’s loss might not lead to the end of appropriation art’s six-decade run. The decision seems to have been narrower than that.

It turned out that what the majority actually had problems with — what the decision was mostly about — was the Warhol Foundation’s failure to pay Goldsmith a licensing fee in 2016. It looked like the court had sidestepped the larger issue of whether Warhol should have used her image at all.

A single sentence in the decision might bring still deeper relief: “The Court expresses no opinion as to the creation, display, or sale of any of the original Prince Series works,” the justices said, referring to the series of silk-screened paintings and prints that Warhol had made from Goldsmith’s photo. According to Thursday’s decision, all those original Warhols, on canvas and paper, had just as much right to go on existing and circulating — being shown and seen and bought and sold — as they had before.

And if those Prince silk-screens might have that right, then by extension all the other works of artistic appropriation, by Warhol and descendants of his, such as Elaine Sturtevant, Sherrie Levine and Richard Prince, and by later followers such as Doeringer, might have the same protections. Or that’s what this new ruling would let some artists and their lawyers argue.

At the very least, the ruling won’t send museums rushing to consign the appropriations they own to the dark depths of the vaults, as a more sweeping ruling against Warhol might have done. So long as appropriation artists aren’t selling licenses for their creations to be reproduced — for instance, in a popular magazine — the Supreme Court’s new decision should not affect them.

“Should” is the operative word. Amy Adler, a law professor at New York University, points out that very few artists actually have the kind of licensing market that Warhol does. “He’s sort of a unicorn in that way,” she said, on a call shortly after the court’s ruling came down. Limiting the case strictly to the licensing issue, as the court seems to have done, would actually make it “irrelevant to most artists,” Adler said.

Her worry, she explained, is that the Supreme Court came to its narrow decision about licensing by way of reasoning that might unmoor protections that appropriation art had already seemed to enjoy in borrowing from other images.

Copyright law is supposed to leave room for the “fair use” of someone else’s creation, but this new decision might easily be read as making Warhol’s use of Goldsmith’s image “fair” in the art world, but unfair where something closer to pure commerce is involved, such as licensing — in magazines but possibly in museum gift shops or on T-shirts.

Adler sees problems with the court’s notion that our culture will not suffer if the Andy Warhol Foundation is made “to pay Goldsmith a fraction of the proceeds from its reuse of her copyrighted work,” as the decision said.

What if Goldsmith were to insist on being paid a billion dollars for a license, or demanded mere thousands from some struggling appropriation artist who could not afford even that? All of a sudden Goldsmith would have close to a veto over someone else’s artistic expression, or at the very least its media reproduction.

That may be at stake in another passage in the decision that Adler points to, where the court talks about how a “modest alteration” to someone else’s image, like the change Warhol made to Goldsmith’s — adding color to her black-and-white image, cropping it — might not be enough to permit its reuse.

But in that case, there goes the basic notion behind appropriation art — that appropriation works because it does so little to alter its source. Like, for instance, in the classic case of Warhol’s Campbell Soups or Brillo Boxes, which look so much like the commercial goods. “That you’re taking this thing, and not changing it — that’s where the power is, but that’s what the law has a hard time wrapping its head around,” Doeringer said.

In a fierce dissent, Justice Elena Kagan seemed to agree, chiding that the majority might just have to “go back to school” to learn such basics of art history. (She cites this author, among others, in her dissent.) Joined by Chief Justice John G. Roberts Jr., the dissent claims that in the majority’s ruling, “All of Warhol’s artistry and social commentary is negated by one thing: Warhol licensed his portrait to a magazine, and Goldsmith sometimes licensed her photos to magazines too. That is the sum and substance of the majority opinion.”

Kagan argues that the majority has applied a “commercialism-trumps-creativity analysis,” and just doesn’t care that, even if they looked rather the same, any works the two artists might have offered up for licensing would have been completely different kinds of art — a photographic portrait vs. a silk-screened piece of appropriation art. And therefore, if the two works are fundamentally unalike, the appropriation shouldn’t have to pay just to exist alongside its source.

“Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gone before; and later works build on that one; and so on through time,” Kagan writes. “In declining to acknowledge the importance of transformative copying,” she concludes, “the Court today, and for the first time, turns its back on how creativity works.”

By narrowing its decision to the licensing issue, the majority clearly believes it has left room for creatives to do their thing. But what if those creatives stand less convinced, said Virginia Rutledge, a curator turned lawyer who co-authored a brief in a famous copyright case involving appropriation art by Richard Prince. They might begin to “slide down the fear hill” of seeking licenses for every appropriation they have in mind, and not creating anything they can’t license. “We know self-censorship is real, at individual and institutional levels,” Rutledge said.

Thursday’s ruling may turn out to be just the latest case where a Supreme Court judgment has effects far beyond what the justices had in mind.

Additional reporting was contributed by Zachary Small.