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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

It seems other people have saner hobbies than I do. Instead of picking up a crossword puzzle or a novel when I have a down moment or an urge to mentally recharge, I copy and paste photos into Word Paint and fiddle with them until they don’t look like photos anymore. It’s not the worst habit in the world, but it does feel a little obsessive. I sometimes tell myself it’s a form of research, which it is: I’m exploring the edges of distortion, looking for the sweet spot where an image teeters between representation and total abstraction. I’m especially interested in how simplification and exaggeration at the micro-level relate to the macro-level image, how a pattern of digital strokes can seem to obliterate all content, and yet roll your chair backwards a yard or two and the ghost of the original photograph is still present as a gestalt effect. Brains are particularly good at piecing together broken shards.

Yesterday I read that an appeals court overruled a lower judge’s decision about whether Andy Warhol broke copyright law when he adapted a photograph of Prince without the photographer’s permission. The question is over whether Warhol’s image adequately transformed its source material. The judge said no:

“The Prince Series retains the essential elements of its source material, and Warhol’s modifications serve chiefly to magnify some elements of that material and minimize others. While the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.”

I think “minimizing” and “magnifying” occur in relation to each other and both are aspects of simplification. More specifically, “magnifying” something is an inevitable effect produced by minimizing other things. Warhol simplified the photograph by cropping it and reducing details in the cropped area. He also added contour lines and opaque color.

The first judge ruled in favor of Warhol in 2019, placing his modification within the range of fair use:

“The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”

The 2nd Circuit Court of Appeals strongly disagrees:

“We conclude that the district court erred in its assessment and application of the fair-use factors and that the works in question do not qualify as fair use as a matter of law… We feel compelled to clarify that it is entirely irrelevant to this analysis that “each Prince Series work is immediately recognizable as a ‘Warhol.'” Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others.”

Arguably, Warhol IS a “celebrity-plagiarist,” since his Monroe series were taken from a publicity movie still and so are vulnerable to the same 2nd Circuit conclusion. I have mixed feelings about both decisions (neither seems quite right to me). Either way, I’m really hoping the Vice-President and/or her photographers won’t be suing me any time soon (I featured a Harris series here in January). I also won’t be suing myself. Some of my more recent transformative adaptations are of a considerably less iconic and larger-than-life figure: me.

I’ll leave others to judge whether and in what sense these are or are not immediately recognizable as Gavalers.

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