Skip to content

The Patron Saint of Superheroes

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

Tag Archives: Andy Warhol

I wrote a series of posts (one, two, three, four, plus codas five, six, and seven) about the Warhol v. Goldsmith case in 2021, before the second appeal went to the Supreme Court in October 2022 (which I discussed here and here).

I offered two guesses about the outcome:

“SCOTUS sides with Warhol, but fails to explain in a manner that will clarify infringement for potential future cases. Alternatively, the Court sides with Goldsmith and still fails to explain in a manner that will clarify infringement for potential future cases. Either way, I predict they dodge the needed work of determining a standard for meaningful transformation.”

The Court has now ruled:

Sadly, the 7-2 decision against Warhol proved my core prediction true: the majority dodged the needed work of determining a standard for meaningful transformation, failing to clarify infringement for potential future cases.

Instead of analyzing Warhol’s transformation of Goldsmith, the majority focused on the fact that both Warhol and Goldsmith sold their images to magazines. Sotomayor explains:

“As portraits of Prince used to depict Prince in magazine stories about Prince, the original photograph and AWF’s copying use of it share substantially the same purpose.”

Gorsuch penned his own concurring opinion, which Jackson joined, emphasizing the extremely limited focus of the decision:

“while our interpretation of the first fair-use factor does not favor the Foundation in this case, it may in others. If, for example, the Foundation had sought to display Mr. Warhol’s image of Prince in a nonprofit museum or a for-profit book commenting on 20th-century art, the purpose and character of that use might well point to fair use. But those cases are not this case. Before us, Ms. Goldsmith challenges only the Foundation’s effort to use its portrait as a commercial substitute for her own protected photograph in sales to magazines looking for images of Prince to accompany articles about the musician. And our only point today is that, while the Foundation may often have a fair-use defense for Mr. Warhol’s work, that does not mean it always will.”

Kagan and Roberts (a surprise given his skeptical questioning during oral arguments) dissented. Kagan writes:

“Like most artists, Warhol did not want to hide his works in a garret; he wanted to sell them. But as Campbell and Google both demonstrate, that fact is nothing near the showstopper the majority claims.”

Kagan continues:

“The silkscreen and the photo, the majority claims, still have the same “essential nature.” The description is disheartening. It’s as though Warhol is an Instagram filter, and a simple one at that (e.g., sepiatinting). “What is all the fuss about?,” the majority wants to know. Ignoring reams of expert evidence—explaining, as every art historian could explain, exactly what the fuss is about—the majority plants itself firmly in the “I could paint that” school of art criticism.”

She even employs my favorite philosophical strategy:

“A thought experiment may pound the point home. Suppose you were the editor of Vanity Fair or or Condé Nast, publishing an article about Prince. You need, of course, some kind of picture. An employee comes to you with two options: the Goldsmith photo, the Warhol portrait. Would you say that you don’t really care? That the employee is free to flip a coin? In the majority’s view, you apparently would. Its opinion … is built on the idea that both are just “portraits of Prince” that may equivalently be “used to depict Prince in magazine stories about Prince.” All I can say is that it’s a good thing the majority isn’t in the magazine business. Of course you would care!”

In short, Kagan concludes about the majority decision: “From top-to-bottom, the analysis fails.”

Though Sotomayor’s Opinion appears first, it includes quips at Kagan:

“The dissent thus misses the forest for a tree.”

“The dissent would rather not debate these finer points.”

“These claims will not age well.”

And Kagan quips back:

“I’ll be happy to discover that my “claims [have] not age[d] well.” But that would require courts to do what the majority does not: make a serious inquiry into the follow-on artist’s creative contributions. The majority’s refusal to do so is what creates the oddity at the heart of today’s opinion. If “newness” matters (as the opinion sometimes says), then why does the majority dismiss all the newness Warhol added just because he licensed his portrait to Condé Nast?”

Kagan’s dissent also employs visual arguments, including an expected comparison of Warhol’s transformative Marilyn to his transformation of the Prince photograph:

The inclusion of Francis Bacon is more surprising:

There’s also an atypical number of nudes:

Most importantly though, Kagan recognizes the larger issue:

“Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more.”

Artists need to know what is and what is not adequately transformative when developing artwork from a source image. Without a standard, parameters for copyright infringement will remain ambiguous, and threats of lawsuits will continue to control artistic behavior.

Consider these examples.

I’m guessing that all of the far-right images are transformative enough to avoid infringing on any copyrights from the images on the far left. (Blanch v. Koons (2005) seems to establish that: “When, as here, the copyrighted work is used as ‘raw material,’ in the furtherance of distinct creative or communicative objectives, the use is transformative.”)

But I have no idea about the three in the middle column.

Or, if these three middle photographs were copyrighted, would the images on the left and right infringe?

Returning to Goldsmith, I have no idea if either of the two transformed images are sufficiently transformative to avoid infringement.

If a work is “transformative,” nothing else matters. A transformative work can’t infringe on the copyrighted worked it transformed, regardless of other factors. While focusing on Warhol’s “use” of his Prince image on a magazine cover, the majority is indirectly declaring that Warhol did not sufficiently transform Goldsmith. But they do not provide the visual analysis needed to explain why that is and, more importantly, to establish any sort of standard for future cases.

Recall that in 2014 Kienitz v. Sconnie Nation and Underground Printing, the circuit judges ruled in the opposite direction. The defendants downloaded a photograph from a city website to use for a t-shirt ridiculing Mayor Peter Soglin:

“Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted.”

That description also suits Warhol’s transformation of Goldsmith’s photograph:

Does the (scant) visual analysis of Warhol v Goldsmith now replace the visual analysis of Kienitz? Or is it true that the elements of original photographs that remain after a silkscreen process “can’t be copyrighted”?

Even without that unaddressed contradiction, the decision deepens the ambiguity. The Court states:

“To preserve the copyright owner’s right to prepare derivative works, defined in §101 of the Copyright Act to include “any other form in which a work may be recast, transformed, or adapted,” the degree of transformation required to make “transformative” use of an original work must go beyond that required to qualify as a derivative.”


“Such transformations may be substantial, like the adaptation of a book into a movie.”

So where is the line between an owner’s copyright-protected derivatives and a second artist’s fair-use transformations?

Warhol v Goldsmith tells us nothing. This is what Kagan means when she sharply criticizes the majority’s refusal to “make a serious inquiry into the follow-on artist’s creative contributions.”

The majority skipped step one:

“Before today, we assessed “the purpose and character” of a copier’s use by asking the following question: Does the work “add[] something new, with a further purpose or different character, altering the [original] with new expression, meaning, or message”? When it did so to a significant degree, we called the work “transformative” and held that the fair-use test’s first factor favored the copier (though other factors could outweigh that one). But today’s decision—all the majority’s protestations notwithstanding—leaves our first-factor inquiry in shambles.”

Though I don’t agree with everything in the dissent, Kagan recognizes the central challenge that the majority ignored. Instead of providing clarity, the decision deepens confusion.

Tags: , , ,

[Update: SCOTUS ruled on May 18, 2023, which I discuss here.]

“Conceptual art,” according to the art-term entry on the Tate website, “is art for which the idea (or concept) behind the work is more important than the finished art object. … a conceptual artist uses whatever materials and whatever form is most appropriate to putting their idea across – this could be anything from a performance to a written description.”

I accept that broad scope to include Supreme Court Justices, who routinely include descriptions of imagined works in their opinions. My favorite was written by Justice Breyer for the majority Google v. Oracle. While making a point about copyright infringement, Breyer refers to “one of the world’s shortest short stories,” and then apparently includes it: “When he awoke, the dinosaur was still there.”

During the oral arguments for Warhol v. Goldsmith on October 12th, three more Justices described conceptual artworks. I have taken the role of artist assistant and rendered each based on the written descriptions from the court transcript.


Go Orange Prince by Clarence Thomas

Justice Thomas:

“Let’s say I’m a Prince fan … [and] also a Syracuse fan and I decided to make one of those big blow-up posters of Orange Prince and change the colors a little bit around the edges and put ‘Go Orange’ underneath. Would you sue me?”


Chromatic Yellow by John Roberts

Chief Justice Roberts:

“There are artists whose work consists of single color within a frame, right? Mondrian, Albers. Let’s say somebody uses a different color. The original is blue and the allegedly copyright-violation work is yellow. If you’ve got art critics to come in and say that blue sends a particular message, yellow sends a different one, would that satisfy any claim of copyright violation?”


Happy Prince by John Roberts

Chief Justice Roberts:

“Let’s suppose that—I think you can do this with technology—instead of the mood that Prince is conveying in the Goldsmith photograph, you put a little smile on his face and say this is a new message. The message is, Prince can be happy. Prince should be happy. Is that enough of a transformation? The message is different.”


Red Dress Mona Lisa by Samuel Alito

Justice Alito:

“Well, suppose that the Mona Lisa was copyrighted and somebody, a real — really skillful copyist, made almost an exact copy. Most people could never detect the difference, except the — the copyist changed the color of her dress. If you showed those two to most people today, they would say, well, all right, brown dress, blue dress, red dress, doesn’t make any difference, right?”


The Justices conceived their four conceptual works for the purpose of determining whether Warhol’s Orange Prince infringes on Lynne Goldsmith’s photograph of Prince:

To that degree, they are depressingly bad works of conceptual art.

Here’s why:

Fair use doctrine includes four factors. Thomas’s poster explores the first, “The Purpose and Character of the Use,” and the third, “The Amount or Substantiality of the Portion Used,” questioning whether the change of use (Warhol’s Orange Prince is a work of fine art meant for art galleries, Thomas’s “Go Orange Prince” would be mass-produced football-game paraphernalia meant for stadiums) is sufficiently transformative despite the verbatim reproduction of the image.

I think the answer is a fairly obvious no.

I discussed in a recent post that the Court is likely to sidestep the most pressing question: “artists need to know what is and what is not adequately transformative when developing artwork from a source image. … I predict they dodge the needed work of determining a standard for meaningful transformation.”

Thomas’s conceptual art, because its degree of factor-three transformation is essentially zero, suggests no new insights on that core challenge.

Roberts doesn’t do any better.

It doesn’t help that Roberts references the wrong artist (the above 1961 Blue Monochrome is by Yves Klein, definitely not Piet Mondrian or Josef Albers). Worse, his line of questionings yields nothing new about transformativeness. I’m pretty sure Thomas was thinking about the minimum level of transformation, which is at least a starting point. Maybe Roberts was approaching from the opposite end of the spectrum, since his conceptual piece is 100% transformative, deriving literally nothing from Klein since every drop of paint would be a necessarily different drop paint. Nothing of Klein’s painting would be reproduced in Roberts’ Yellow Monochrome except the concept of a monochrome painting, which can’t be copyrighted and therefore can’t be infringed upon. But I don’t think that was his point. He seemed to be snagged on whether sufficient transformation can be defined by the presence of any “new message” in the new work, which is a side effect of transformation not the transformation itself.

His second conceptual piece is a little better, but also mostly a variation on Thomas’s, since, again, it’s about least amount of transformation possible. Roberts was still more interested in “message” though, a murky idea that avoids the question of degrees.

It would be more useful to ask whether the altered smile alters “the heart” of Goldsmith’s photograph. SCOTUS ruled in 1997 that infringement occurs if the copied portion is “the heart of the work,” and they ruled again last year that: “even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression.” (That’s from Breyer’s Google v. Oracle again, same section as his dinosaur short story.)

Sadly, the key question of what constitutes “the heart” of a visual image, particularly an image of a individual such as Prince, somehow never came up during the oral arguments. I’d say Roberts’s Happy Prince raises a good question, albeit one that the Chief Justice wasn’t aware he was raising. Most of the image reproduces the original verbatim–and yet if the altered mouth alters “the heart” of Goldsmith’s photograph, then the transformativeness must be substantive and, if so, it shouldn’t infringe. I would love if the Supreme Court would answer that core question. But at the moment, they don’t seem to know the question exists.

Alito certainly doesn’t.

Maybe Justice Alito was napping during Thomas’s and Roberts’s questions, because his conceptual art is a step backwards into irrelevance. Thomas at least introduced a change of use. Alito is just imagining some second work of fine art with some non-essential element altered. Again, if he had reread infringement cases that focused on the question of what constitutes a work’s “heart,” he would know that his questioning was self-evident: yes, a copy of the Mona Lisa that alters only the color of the dress would infringe on the original.

The Court isn’t supposed to declare their decision until summer, and I really don’t know which side they’ll land on. Sadly, I suspect it won’t matter, because they will do nothing to clarify the central question for anyone other than the plaintiff and defendant in this very particular case. When we read the ruling, the problem will still be there.

Tags: , , , , , ,

As some past readers of this blog may have noticed, I have a thing for Andy Warhol (one that infected at least one of my students). So imagine my delight when on the first day of our family vacation last month, our Amsterdam canal guide steered us past this unlikely sight:

I’m a little slow, but I eventually figured out it was an ad for a Pop Art exhibition in the city that same month. Warhol’s “Marilyn” was pleasantly everywhere:


Given that the original work is a commentary on the nature of reproductions, these ads seem like a natural extension of Warhol’s vision. And, by an even more pleasant coincidence, the actual exhibition was housed in the same building as the conference I was attending:

Though I’ve looked at dozens of book illustration reprints and online pixel-versions of Warhol’s art, it was startling to see the originals in person:

And if I’m obsessed with Warhol’s “Marilyn,” then Roy Lichtenstein’s “Crying Girl” is a close second:

None of the online versions I’ve looked at include his signature:

These two Pop Art paintings have been my top influences as I’ve dabbled in Word Paint for the past year:

When the new online journal Sequentials announced its first CFC (“call for comics”), I leapt:

“The late-20th Century ushered in a multi-disciplinary reaction to modernism that influenced various disciplines, artists, and thinkers. Since this time, postmodernism has been taken up in literature, film, music, philosophy, architecture, theory, and more. Despite its widespread influence, however, postmodernism remains a debated movement with many scholars and creators arguing that it lacks clarity and meaning. Characterized by an emphasis on deconstruction and critical theory, postmodernism has evolved in past decades to include innovative, if contested, ideas and structures. For Sequentials’ first Call For Comics, we seek visual interpretations of the concept of postmodernism…  Submissions must be illustrated in comics form and can visualize a particular aspect of the concept or the movement as understood through a particular discipline. Additionally, submissions may visualize an explanation and/or critical inquiry of the subject.

“This project asks contributors to (re)imagine the meanings of both the subject they are drawing about andthe form that their interpretation takes. By encouraging contributors to conceptualize their work in a distinctly visual way, this project highlights the unique creative capabilities of the comics medium and reflects TRACE’s overall focus on innovative research, writing, and knowledge production. The Sequentials project seeks to display and circulate original visual scholarship, providing alternative modes of meaning making and centralizing issues of form.”

My response, “This Is Not Marilyn: The Dailies,” began with a newspaper-like strip of the publicity photo that Warhol used in August 1962 to create his first requiem-like silkscreen after the news of her death:

Then I started layering and playing with the comics conventions of talk balloons, thought bubbles, and caption boxes:The complete, eleven-strip sequence is available in Sequentials‘ first issue here (though personally, I prefer Oriana Gatta’s contribution.)

Meanwhile, back in Amsterdam, I kept finding more Marilyns, including Banksy’s Kate Moss variations:


And meanwhile in the online universe, Sequentials‘ next issue will focus on “queer”:

“For Sequentials’ second special Call For Comics, we seek visual interpretations of the complexity of queer existence, discourse, and theoretical concepts. We are particularly interested in submissions that comment on the relationship between various deployments of the term “queer” and concepts of visibility, visuality, and art-as-activism. Submissions must be illustrated in comics form and can visualize, for instance, a particular interpretation of a given theorist’s concept(s), a unique contribution to the field of queer theory, or the possible connection between comics and queer theory.”

[To be continued . . . ?]

Tags: , , ,

%d bloggers like this: