“Andy Warhol. Silver screen. Can’t tell them apart at all,” David Bowie sang almost 52 years ago. This week the US supreme court appeared to agree when, by a seven-two majority, it found against the Andy Warhol Foundation for the Visual Arts in a copyright dispute over a 1981 photograph of Prince. Some observers suggest the judgment could have all sorts of implications for intellectual-property rights in the new post-AI era. But the case also reminds us, as if we need reminding, of the enduring, ambiguous legacy of Warhol, the enigmatic idiot savant whose life and art practice were entwined with the guiding spirits of his (and our) age: corporate commodification, mass-market consumerism and the fetishisation of celebrity as an end in itself.
Our story begins in 1984, when Vanity Fair paid the rock photographer Lynn Goldsmith $400 for a one-time licence to use her image of a pre-superstardom Prince. Warhol took the picture as the basis for a silkscreen image that the magazine published. As was his wont, the artist then went on to create 15 variations on the theme, in different colours.
When Prince died, in 2016, Vanity Fair’s owner, Condé Nast, paid the Warhol foundation $10,000 to use a work from that series, Orange Prince, for its commemorative cover, without paying or crediting Goldsmith. The resulting case has been wending its way through the American courts for seven years. This week’s verdict (which, unusually these days, did not split along conservative/liberal lines) marks its final resolution.
The legal argument centres on the concept of “fair use”, the doctrine that allows me to quote the David Bowie lines above without receiving a legal letter. Warhol’s biographer Blake Gopnik told the New York Times that the court had sidestepped the question of whether the artist himself should have used Goldsmith’s image at all and that the ruling “won’t send museums rushing to consign the appropriations they own to the dark depths of the vaults, as a more sweeping ruling against Warhol might have done”. The judgment was made on the narrow question of whether the licensing of Warhol’s version to a specific publisher breached Goldsmith’s competitive right to provide a similar service with her original image. Nobody seems to be suggesting the photographer could make the same claim against art galleries exhibiting Warhol’s Prince series.
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But the two dissenting judges on the court, along with critics of the decision, argue that it chips away at the argument that, if a work is artistically “transformational”, it is protected against copyright claims from the originators of the source material. The concept of what is or isn’t transformational has always been slippery, of course, but it’s becoming even more ambiguous with the advent of deep learning models such as Dall-E, which can generate multiple variations ad infinitum on any visual theme. The same is true of generative language and music models. By the standards of the day before yesterday, these are all transformational, it’s just not transformation by a human.
Variety reported that the case has been closely watched in part because it’s sure to have implications for the “tidal wave of AI-generated art and literary works that are to emerge, and the still-larger wave of litigation likely to follow”.
Warhol, who bridged the worlds of media, music, film, art and business, would surely have relished all this. As someone who came originally from graphic design and spent the rest of his career scrambling the arbitrary demarcation lines between the “commercial” and the “artistic”, he was no stranger to high financial stakes. (Last year his Shot Sage Blue Marilyn sold for €190 million at Christie’s, making it the most expensive American artwork bought at auction.)
He died in 1987, so never saw the internet, but the ways in which Warhol explored the meaning of art in the age of mechanical mass reproduction remain surprisingly relevant in the modern era of online distribution and infinite reproducibility. The entire phenomenon of NFTs, for example, with its peculiarly pungent blend of art-theory bullshit, bubble economics and bandwagon-jumping by the rich and famous, could hardly be more Warholian. Selling out was a core part of his aesthetic, bad taste a guiding principle. What would he have done with the avatar of the American id that is Donald Trump? Judging by the choices he made in life, he almost certainly would have found him irresistible. As Gopnik’s biography points out, there’s a clear line from Warhol’s Byzantine Catholic religious upbringing to his life’s work of turning Coke bottles, soup cans, Elvis, Marilyn, Jackie O and all the rest of them into the iconic, ironic sacred icons we know today. We all still live in Andy’s world.
