Copyright and Context
Why a landmark ruling in favor of photographers isn’t actually very helpful at all
I photograph a lot of lawyers. Every time I meet an intellectual property attorney I tell them my theory that copyright is like the wild west: a rough, lawless territory where anything goes. They chuckle politely and agree.
I developed this theory after realizing that nobody—from artists to attorneys—could say with much certainty how any given case of copyright infringement might be decided in a court of law. It frequently seems to come down to a judge’s personal interpretation of copyright and how they’re feeling on the day their decision is due.
How else could you explain the continued record of legal victories for an artist like Richard Prince? Prince became rich and famous by copying, cropping and selling—for vast sums of money—“rephotographs” of works made by other artists. Perhaps his most famous works are rephotographs of the Marlboro men originally made famous by advertising photographers in the latter half of the 20th century. Prince rephotographed magazine spreads of these ads, cropped out any text and logos, then printed them large and sold them in art galleries as his “Untitled (Cowboy)” series. One of these was the first photograph to ever sell for more than $1 million, and just this year another cowboy rephotograph sold for $3 million. Granted it’s a very large print, but still. It’s a photograph of a magazine ad that was originally made by another artist—a nameless photographer.
They’re not nameless, of course. They simply aren’t famous the way artists such as Richard Prince and Andy Warhol are famous. So their prints don’t sell for $3 million.
When these nameless photographers sue Richard Prince, which they do with some regularity, Prince wins. And he wins largely because his work is deemed to be fair use, which is a little corner carved out of copyright to allow for educational, newsworthy or transformative uses of copyrighted material. Prince’s work is deemed to be transformative not because of visual alterations to images, but contextual ones.
We photographers tend to get hung up on the term “transformative” in the context of rephotographing an existing photograph. We think surely cropping alone isn’t enough to transform a photograph into a new work, is it? But we fail to note the transformation of taking an image from the advertising realm into the art world.
You see, part of what makes using someone else’s copyrighted work an infringement, the courts say, is whether it makes it harder for the original artist to profit from their work. So a capital A Artist like Richard Prince or Andy Warhol, is inherently transforming someone else’s work of visual art by simply changing the context in which it is sold. In the case of a commercial advertising photographer who is paid to photograph men on horses in the American West for the purpose of marketing tobacco, that photographer’s ability to earn a living from such is in no way harmed by Richard Prince rephotographing the work, changing it slightly, and selling it in an entirely different context (the fine art world).
Had the original photographers of the Marlboro ads been selling their prints as fine art in galleries, it’s likely the courts would rule differently and agree that Richard Prince’s rephotographs do, in fact, hinder the original photographers’ ability to profit from their copyrighted works.
We focus on the visual nature of a transformative work, but the courts continually rule that a change of context is transformative enough as to be permissible.
Which is why just last week it was a surprise to everybody when the Supreme Court of the United States ruled 7-2 in favor of another nameless photographer and against the estate of artist Andy Warhol. Ever heard of him?
Pundits everywhere from legal scholars on twitter to the New York Times have regarded the ruling with skepticism, with warnings that this ruling is a blow to creativity, that it will limit artistic expression, and generally lamenting that such a genius like Andy Warhol could ever be beholden to some lowly nameless photographer.
Even supreme court justice Elena Kagan weighed in as such in her dissent: “It will stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer."
But, like the pundits, justice Kagan is wrong.
First of all, the photographer whose name is so often a footnote in coverage of this historic case is Lynn Goldsmith. She is a fantastic portrait photographer with a tremendous and important body of work. She shaped the visual identity of popular music in the late 20th century. She helped give Bruce Springsteen his signature look, and she photographed everyone who was anyone, including another man named Prince. In this case it’s the mononymous one himself, of Purple Rain fame.
In 1981 while on assignment for Newsweek, Goldsmith photographed Prince (the singer, not the appropriation artist). As a commercial portrait photographer she earns her living photographing rock stars and licensing those images to record labels and magazine publishers. They exchange money for the right to publish her photographs, for which she holds the copyright.1
When Andy Warhol was hired by Vanity Fair magazine in 1984 to create a portrait of Prince, the magazine licensed Goldsmith’s photograph explicitly so that Warhol could use the image as a reference. She was to be credited by name, paid $400, and the Warhol image was to be used only once in a single issue of the magazine.
But Warhol made a series of 16 images of Prince based on Goldsmith’s photograph, cropping and coloring and generally transforming the original image into something entirely—well not entirely—different in the way Warhol was famous for. He appropriated Goldsmith’s photograph of Prince and used it in a variety of ways, including selling silkscreen prints in galleries around the globe for as much as $170,000.
It was the use of one of Warhol’s Prince prints a second time, after the musician’s death in 2016, that led to this month’s Supreme Court ruling.
While photographers and artists and talking heads debate what exactly constitutes enough visual change to qualify as transformative, the real reason for the court’s decision is not found in the headlines. The visual style of the images is all but immaterial to this ruling. It’s the fact that the Andy Warhol Foundation double dipped, licensing the image to a magazine publisher a second time, violating the terms of the original 1984 agreement and encroaching on the original photographer’s ability to profit by licensing her images to magazine publishers. It’s the usage that made for the infringement, not the visual qualities of the work itself.
In writing for the majority, Justice Sonia Sotomayor pointed out that the Warhol work and Goldsmith’s original photograph “share substantially the same purpose,” which is in this case the reproduction of a famous artist’s face on the pages of a magazine. Had Warhol’s foundation simply continued selling expensive silkscreen prints of the images in galleries, they would have successfully defended themselves against the infringement lawsuit.2
Which feels a little bit like winning on a technicality.
The court did not rule that famous artists must share profits with those upon whose works they build. And so going forward, famous artists like Richard Prince will continue to win their lawsuits because of the transformative nature of taking an image out of its context and putting it into a new one—even if the image itself is identical to the original.
It seems to me that the solution can be found not in the world of visual arts, but in popular music. The judges and artists and twitterati claiming the death of creativity might take note of the fact that there is a substantial precedent long established in the music business. There, artists regularly pay to license music samples in order to incorporate them into new songs. It’s an approach that seems to work for everybody, and when it doesn’t it’s actually more protective of the original creator’s rights.
Some interesting examples of this were ringing in my ears as I considered the ruling in the Goldsmith/Warhol case. There are actually plenty to choose from. But the granddaddy of them all is the story of Bittersweet Symphony, the 1997 earworm from britpop band The Verve. The song is catchy as heck and is built around a sampled string section from a 1965 instrumental recording of a Rolling Stones song.3
When The Verve’s record label tried licensing the sample, the Rolling Stones’ infamously difficult manager, Alan Klein, objected and demanded that Mick Jagger and Keith Richards be credited as songwriters on the 1997 single, as such receiving 100% of the songwriting royalties for the tune.
What’s especially ironic 25 years after the release of Bittersweet Symphony is that Jagger and Richards didn’t even write the string section that was sampled. That was another guy, a composer who received—let’s see, oh yes here it is—absolutely nothing.4
Now imagine that logic applied to visual art. Richard Prince would be paying the likes of Norm Clasen—one of the many commercial photographers whose images Prince appropriated—literal millions in royalties. Instead these photographers get nothing but heartache as they see their photographs copied and sold again and again, each time for life-changing sums of money.
It seems to me that the fairest, simplest infringement test isn’t one of transformation, but origination. Just as musicians regularly license sounds and harmonies that serve as jumping-off points for their creations, visual artists should be able to count on similar protection. Warhol’s Prince silkscreens are undeniably based on Goldsmith’s photographs—but they are also undeniably different. Which to me begs the essential question: could the Warhol Prince works exist as they do without the input or influence of Lynn Goldsmith? Of course not. Goldsmith’s photograph is essential to Warhol’s silkscreen. It would not appear as it does without her original creation. And so she should be paid for every iteration of the work that has built upon it.
But she won’t be, because photographers are not afforded the same protections as musicians, all because of that issue of context. It’s only when appropriation artists venture out of the safe haven of the fine art world and into commercial art that their context clashes with that of photographers.
The Pain of Appropriation
Years ago I had the pleasure of interviewing both Lynn Goldsmith and one of the Marlboro photographers, Norm Clasen.
Both made clear just how troubling their copyright issues have been. They’re baffled that anyone could question whether they deserve to be compensated for the sale of works in which they were instrumental. I enjoy the theoretical discussion of copyright as much as the next guy, but hearing from these talented artists about the emotional distress of having your work stolen, then sold for a literal fortune, it’s hard not to see these situations as cut and dry.
“It’s a very hollow feeling,” Clasen told me in 2018. “There’s not credit to myself, there’s not even credit to Leo Burnett [the agency that created the campaign], there’s not credit to anybody. [Richard] Prince claims that he is the artist, that he created it. There’s no question that appropriated art has been going on for centuries. People have painted the Mona Lisa, people have copied other artists, a guy buys a toilet bowl and puts it in the Museum of Modern Art, the Campbell’s soup cans… I don’t buy that it’s the same thing as someone taking work that you authored, copying it, and then claiming that it’s their own work. It’s just simply two different issues.”
“It leaves a pit in the bottom of your stomach,” he continued. “You just sit there and you go, ‘How did this happen? What kind of person would lower their values to a point where they would do this?’ One particular image I saw was one where I remember the day, I remember everything about it: laying out in the sagebrush, sitting there with the ants and the mosquitos and the snakes at 6:30 in the morning and trying to capture this image and all that went into it from the agency standpoint and the production standpoint and then capturing that image, and then this guy sits in his living room and takes a picture of that, blows it up and sells it for a million dollars? It just leaves a pit in your stomach.”
Just FYI, when you create something—a poem, a song, a photograph, a painting—it’s copyrighted. Even if you don’t register it with the U.S. Copyright Office. Registering offers expanded legal remedies, but it’s not required. Remember: when it’s created, it’s copyrighted.
Fun fact. Goldsmith didn’t actually sue the Warhol estate. When she said she thought the artist may have violated her copyright, they sued her first.
For years I mistakenly thought it was a sample of the original Stones recording, but in fact it’s a sample from a strings-only instrumental the band licensed more than 30 years before The Verve’s Richard Ashcroft turned it into an all-time great tune.
It’s largely accepted that this rights issue was not orchestrated—pardon the pun—by Jagger or Richards, but in fact by manager Alan Klein who owned the rights to the Stones’ pre-1970 catalog. In 2019, after Klein’s death his son, along with Jagger and Richards, signed over rights to Bittersweet Symphony to the rightful creator, The Verve’s Richard Ashcroft.
Goldsmith and Clasen absolutely should’ve been compensated! Copying someone else’s work and photoshopping it (or whatever) is not creating. If they’d done it just to have something cool on their living room wall, fine. But to rake in astronomical profits?? And not even offer to credit the creator of the original work that they appropriated??? It boggles my mind.
Not sure how it all got so complicated. If I create something you can only use it if I say so. The only way one gets around that is if the right people with the right money (read: more than I have) can work copyright to their advantage. It is a swindle, plain and simple.