• Molly Finn

Appropriation of Art and Andy Warhol's "Fair Use" Ruling

Appropriation of art is a matter of aesthetics and the transformation of pre-existing work. The question of appropriation has become a central facet of the legal battle over Andy Warhol’s “Prince Series” in The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al.


In 1984, Vanity Fair was granted one-time use of Lynn Goldsmith’s black and white photograph of Prince for an artist illustration. The artist, Andy Warhol, also created 15 other portraits of Prince based on the photograph. The Andy Warhol Foundation later sold one of those illustrations to Conde Nast in 2016 for US$ 10,000 (approximately GBP 7, 260) to serve as a magazine cover following Prince’s death. Overall, many of the “Prince Series” works have also been displayed in museums and 12 have been sold for profit.


According to Goldberg, the Vanity Fair use of Warhol’s illustration was copyrighted because it was not covered by the one-time use license. The Andy Warhol Foundation responded by taking the matter to court, arguing that Warhol’s extended use of Goldsmith’s photograph should be protected under the fair use exception. Fair use can be utilised as an exception to copyright standards when those standards enacted to promote artistic creativity actually limit the creativity promoted by such laws. Determining whether an artistic expression is fair use depends on whether the work is transformative of the original inspiration, thus creating something new.


To be protected under fair use, it must be evidently and reasonably perceivable that the artist had a unique vision and entirely new meaning for the work, in addition to any new display or source material. While the artist may transform the visual elements of the work, it is not protected without developing an entirely new and separate message.


In the Warhol case, the Prince series was found fair use by the trial court judge due to its transformative effects giving new meaning to the original photograph. While Goldberg’s photograph depicted Prince’s vulnerability and humanity, Warhol created an image of Prince using bold abnormal colours that, in the words of the judge, portrayed him as an “iconic, larger-than-life figure”. Warhol had utilised Goldberg’s photograph as raw material, creating a work of art with an entirely new inspiration and vision.


However, the Court of Appeals for the Second Circuit came to a different conclusion. On 26 March 2021, the court ruled that Warhol’s use of Goldsmith’s photograph was not transformative enough to be protected under fair use. The difference in ruling between the two courts emphasises the subjectivity of aesthetics. While one judge perceived the meaning and vision of the work as transformative, the second judge had an entirely different take on the work.


A United States Supreme Court case, Google LLC v. Oracle America, INC., can be compared to the Warhol case as an example of the nuances of the notion of transformativeness. In April 2021, the Supreme Court emphasised the significance of transformativeness by ruling that Google’s unsanctioned use of Oracle’s 11,500 lines of code from its Java SE program was fair use in creating a new and original operating system.


While the Supreme Court ruled here that Google’s use of Oracle’s code created a new functionality and was therefore transformative, the Second Circuit in the Warhol case faced a much more difficult determination. Fair use in terms of Warhol’s Orange Prince is a case of aesthetics where the artistic purpose and message are just as important as the source material.


The Second Court utilised another art case as an example of fair use through its mention of the case of Jeff Koons’ 2000 painting Niagara. The artist was sued in 2003 for his use of Andrea Blanc’s photograph Silk Sandals by Gucci. Koons repositioned the legs and feet in the image and placed them with three other sets of legs in front of a landscape adorned with pastries. Koons won his case, and the court decided that his use of Blanc’s photograph was transformative in that he utilised it to form a distinctive review on contemporary culture.


Similar to the case of Google v Oracle, it was easy to determine the transformation within Koons’ work. As a collage, Koon used Blanc’s photograph as a building block of inspiration within an intricately unique work of his own. Google’s use of Oracle’s code was also easy to decipher as it took countable lines of code and incorporated them within a numerably larger design. However, Warhol’s work is not a collage but draws upon a single source. It is more difficult to determine whether a work is transformative if it does not draw upon multiple sources but instead alters the elements of a single work.


Ultimately, one must question the validity of courts in deciding transformation within art cases. While it is easy to determine transformation through adding new sources and materials, like in the Google and Koons cases, the Warhol case is arguably one of aesthetics. True transformation of a work cannot always be determined based on its additive nature. As a question of aesthetics, the partiality of any court is an intricacy that is likely to affect the ruling within various art law cases.