Last October, I had a strange hearing in the US Supreme Court. It was about the issue that only the photographer faces Lynn Goldsmith with the Andy Warhol Foundationheiress to the rights to the pop art icon about Warhol’s use of the Prince’s portrait by Goldsmith as the basis for many of his paintings Specifically for the cover of the magazine.
The dispute, like many other cases assessed by the highest US court, would have gone unnoticed by the general public if it were not for two reasons. First, the importance within contemporary culture to all involved in the issue, and second, that The final verdict could have dire consequences for the future of the visual arts, delineating a line that has been largely blurred for decades, the one that exists between inspiration and appropriation. What will happen to the work of the many current artists whose work is based entirely or in part on the use and reinterpretation of images of others without their consent?
But let’s start from the beginning. In 1981, Goldsmith was already known for her portraits of icons Rock and Roll Music How Bob DylanAnd the Patti SmithAnd the Bruce Springsteen also The rolling stonesTake some pictures Prince for the magazine Newsweek Prepared for a report that has not been finally published.
Three years later, in 1984, after the release of the album purple rain And Prince’s Rise to International Stardom, The Journal Vanity Fair commissioned an illustration from Warhol to accompany an article on the singer.
It was then that the publication contacted Goldsmith and acquired the rights to one of those unpublished photographs for $400, with the obligation to cite her as the author of the photograph, and to provide it to Warhol to create the illustration.
Warhol’s glory days were long gone, but the Pittsburgh artist, after a period of decline, She is back in fashion Thanks above all for being associated with some of New York’s most exciting young artists such as Jean-Michel Basquiat also Julian Schnabel. Always so fruitful, from the goldsmith’s picture, Warhol created the series Princewhich consists of fourteen serigraphs in various colors and two pencil sketches. One of these paintings is entitled Purple Princewas estimated To illuminate pages Vanity Fair.
The story could have ended here, but the problems began with Prince’s death in 2016 from an accidental fentanyl overdose. After the star’s death, Condé Nast released a magazine publisher Vanity Fairwanted Publication of a memorial magazine dedicated to the Minneapolis artist titled Genius Prince (Prince’s Genius) and paid more than $10,000 to the Andy Warhol Foundation to use another of the serigraphs created in 1984. Orange Prince.
This time, Goldsmith was not mentioned as the author of the photo, nor did she receive any kind of financial compensation for its use, which after seeing the magazine’s publication and learning about her photo, The photographer decided to demand compensation in court.
of the Warhol Foundation have defended themselves against charges that they alleged that Factory’s creator had made a “fair use” of the image, authorized by law, and that it had no obligation to provide monetary compensation to Goldsmith. From the court to confirm the series Prince It does not constitute an infringement of Goldsmith’s intellectual property rights.
The first Manhattan court to review the case in 2019 ruled in favor of the foundation. According to the sentence, Warhol managed to transform Goldsmith’s portrait of the musician, which showed a “weak and uncomfortable person” into a “character that is outstanding and extraordinary”. This turnaround seemed enough for the judge to rule that no additional payment was necessary to the photographer.
But in 2021, Another court overturned the initial ruling, agreeing with Goldsmith. He also described the previous ruling as “wrong,” accusing the 2019 judge of playing the role of an art critic, assigning himself the role of interpreting the intention or meaning of the works in question. Judge Gerard E. Lynch decided that, perhaps assigning himself to the role of critic, “for a work not to be considered derivative would require more than the superimposition of another artist’s style upon the initial work”.
The final and final decision is now in the hands of the Supreme Court, which has already heard the parties and which is expected to be pronounced in the middle of next year. The case sparks a conflict that could have serious consequences in the art world depending on the final verdict. For the Warhol Foundation, a ruling against him would restrict the liberties of artists who use appropriation as part of their process and harm creative expression. In Goldsmith’s view, a sentence that did not agree with him would leave the creators of the original artwork unprotected who, as in his case, would receive no monetary compensation if any of their work was used by someone.
The situation in Spain
It is, of course, a complex issue whose outcome is difficult to predict. What would happen if something like this happened within our borders? “It is very difficult for me to make an opinion about whether or not it is correct for artists to use images created by others in their art, because I am one of those artists who assign images to evoke his work,” Dahan confirms. David malewhose works are characterized by b horror void An ending populated by dozens of characters and situations drawn from their obsessions, current events, and pop culture. “In addition, this has been done for 100 years, Duchamp and then Dali did it with Mona Lisa, for example.”
“the artist possession In a complex situation in terms of legal certainty,” explains Belen Alvarez, the company’s senior attorney and intellectual property expert Gaberas and associates, which shows that in our country there can be a situation similar to the one faced by the Supreme Court of the United States. “Spanish intellectual property law recognizes authors, including illustrators and photographers, the exclusive right to authorize or prohibit the reproduction, distribution, public communication and transformation of their work,” says the lawyer. “In this way, If an author wants to use another work for inclusion in their own works or is interested in modifying an existing work to create a new work, they need the work’s author’s permission origin & rdquo;. This means that with the law in hand, Thousands of businesses can be subject to lawsuits.
If the case is resolved taking into account Spanish legislation, it is very likely that the court will agree with the photographer, because the portrait of the prince made by Warhol does not fit any of the possible exceptions.
Belén Alvarez, attorney expert in intellectual property
However, Spanish law recognizes certain cases in which someone else’s work can be used without the author’s permission, such as the right to access culture, education or information. Therefore, “if the case of the Warhol Foundation v. Lynn Goldsmith is resolved taking into account Spanish legislation, it is very likely that the court will agree with the photographer, since the portrait of the prince created by Warhol does not fit any of the possible exceptions.”
But does not the application of this law as formulated mean an insurmountable curtailment of creative freedom? From the artist’s point of view, Machu believes that “Creating a completely new image today is very complicated because every hour we are exposed to thousands of images which remain etched in our minds almost unconsciously and which make us continually steal, we reproduce almost without wanting to.
“Obviously,” he continues, “I also think we should fight for authors’ rights.” Not because they are geniuses, but so that big corporations do not exploit their work and get economic profit that belongs to them. We are in a system that punishes the Creator so much and absorbs Him to the point of soullessness. In the case of Warhol and Goldsmith I have many doubts, however I believe that in this case, the photographer and Warhol collaborated by creating a series of works. One of them put the picture, and the other painted on top of it, it was a collaboration and the collaboration was double-authored. Therefore, the jeweler must continue to receive part of the money.
For his part, Alvarez concedes that perhaps the problem, in both US and Spanish legislation, is that The assumptions recognized in current intellectual property laws do not properly reflect the increasingly common trends and uses in current art. Appropriation generates many worldwide disputes between authors each year. “I think it might be interesting to evaluate the possibility of including a new limitation in intellectual property law that would allow the use of protected works by visual artists in order to incorporate them into their own creations, while respecting parental right over the pre-existing work, so long as such use is made with the intent of honoring the author.” the latter or his work, and neither his normal exploitation nor the legitimate interests of the said author are prejudiced; he appoints counsel.” In this way, the author can exercise his right to artistic freedom in conditions of legal security and creative activity will be stimulated & rdquor;
Macho adds another factor that he considers decisive. I think if your speech endorses you in taking someone else’s creativity, changing its context and giving it a new meaning, then the use is fair. Another thing is to use creating another secrecy like ‘Let’s see if it slips…’ Intent matters! But if you take action And you flip it, change its meaning and contextualize it in your time, it’s not plagiarism and you’re not stealing anything.Maybe the background, the poetics, the methodology behind a work of art that uses other people’s images, is what has to be fresh and original, what makes it a project.”
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