by Giuditta Giardini
By a majority decision of 7 out of 2, the chief justices found the Andy Warhol Foundation guilty of copyright infringement in photographer Lynn Goldsmith’s photograph depicting Richard Prince
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Last Thursday, May 18, the United States Supreme Court ruled by a vote of 7 to 2 Andy Warhol did not have the right to use the photographic portrait of RichardPrince of the photographer Lynne Goldsmith for commercial purposes. The phrase is very important to the US because it limits the scope of “fair use,” a defense against infringing on the copyright of others.
After the recent defeat before the Florentine judiciary, we speak again about the (real or imagined) “lightness” of Condé Nast, who published one of the 16 photographic portraits of Condé Nast in 2016, on the occasion of the death of singer Richard Prince Andy Warhol in 1984 for “Vanity Fair”, known as “The Orange Series”, for $10,250 to the Warhol Foundation, which has cared for the artist’s legacy in pop art since 1987.
The Warhol recolored photo was originally taken in 1981 by Lynn Goldsmith, who had neither authorized the use of 2016 nor paid for these reproductions. So the lawsuit began in 2017. In the first instance, the Manhattan District Court had ruled in Warhol’s favour, seeing “something new” in his photo, then the Second Circuit Court of Appeals had reversed its steps, forcing Andy Warhol Foundation to appeal to the Supreme Court.
The long-awaited verdict, signed by the judge Sonia Sotomayor, limits the defense of the equity of “fair use” which in some cases justifies infringement of the copyright of others in the figurative art world. “Original works of art such as photographs are protected by copyright even when used by famous artists.” According to Judge Sotomayor, who affirms the contrary, “this would authorize the commercial use of copies of photographs for purposes similar to the original purposes”. In fact, the mere action of taking another person’s photograph, altering some of its features, and selling it as one’s own is not enough to bring about the transformative use of fair use.
Judge or art critic?
Opposing the majority position are two liberal judges who have expressed disappointment. The judge Elena KeganIn a sharp tone, he argues that the sentence contains inconsistencies and exaggerations from beginning to end. The Liberal judge believed that the first factor of “fair use,” which concerns “the purpose and manner” of using the original work, had not been carefully considered, and specifically spoke of the blindness of her peers who “exclusively focused on the pictures”. without listening to the experts “about the aesthetic interpretation and meaning” of what they observed. The judge had already commented on this John G. Koeltl of the Circuit Court of Appeals for the Second Circuit who had written that judges cannot play the role of art critics. It is true that the majority opinion and the dissenting opinion seem to have been taken from art history books. Finally, to demonstrate artistic appropriation over the centuries, Kegan even made a comparison between the “Sleeping Venus”. Giorgionethe “Venus” of Urbino from Titian and the “Olympia” of Manet.
Transformational Use
The linchpin of the majority legal argument was precisely transformative use, which is one of the four pillars of legal scrutiny of fair use. According to the Supreme Court, the use of another person’s protected material is transformative when it “adds something new, a new purpose, a different angle, and changes the purpose with a new expression, meaning, or message.” For Judge Kegan, however, Warhol’s paintings are not “fungible” as her peers have assumed. The example he uses is apt: “Imagine you are the editor of Condé Nast’s Vanity Fair and responsible for publishing an article about Prince. Of course you need a photo. Your co-worker brings you two choices: a photo of Goldsmith and a portrait of Warhol. Would you say that it doesn’t matter which photo is chosen? Would you let your co-worker flip a coin to decide? Apparently, the majority opinion would turn them around. Fortunately, the majority are not in the publishing market. Of course the choice is important!”
As for the purpose and manner of the artist’s use of pop art, the majority view was that Warhol’s photograph was a lucrative and competitive use with Goldsmith’s work, the judge found. Sotomayor. Many artists like Goldsmith live off the licenses for their recordings. “These provide an incentive to create original works and protecting them is the very purpose of copyright,” he commented. Usage in this case differs from that of the Campbell can logo. Indeed, in this case, as the judge reiterated, there was no overlap and Warhol’s criticism of consumerism was clear.
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