Warhol once said being good in business is the most fascinating kind of art. But in the age of AI-generated art, questions of fair use and copyright law are becoming increasingly complex. via WIRED UK 📷: Mark Sink/Getty Images
The prelude to the case is a long one. In 1981, Lynn Goldsmith photographed Prince in her studio. In 1984, licensed that photo for artistic reference. The artist was Andy Warhol. Warhol’s work became the magazine’s November cover, with Goldsmith given a photography credit. Between 1984 and 1987, Warhol created the “Prince Series,” again referencing Goldsmith’s photograph, for 15 additional images.
Following Prince’s death in 2016, Condé Nast published a special issue commemorating his passing and licensed Warhol’s “Orange Prince” from the Foundation for $10,250, without crediting Goldsmith. Discovering this and the “Prince Series” itself, Goldsmith contacted the Warhol Foundation, which sued her, preemptively, claiming fair use. Goldsmith countersued for infringement. In 2019, a federal district court ruled in the foundation’s favor.
“There’s a version of this case where it’s so obviously a derivative work,” says Ryan Merkley, managing editor at Aspen Digital and chair of the Flickr Foundation. Goldsmith’s photo was provided for a single use but was used multiple times. “Why didn’t Goldsmith get paid for the thing she got paid for the first time?”
The case has confounded observers, attorneys, and artists. It’s difficult to know whether Warhol appreciated Goldsmith’s contribution to the Prince series or how Prince felt about Warhol’s use of his likeness. Ultimately, those questions may never be answered. But what the Court must decide is whether Warhol’s piece is a significant transformation of Goldsmith’s photograph, and thus protected by fair use, or if it’s copyright infringement.
For years, the “sweat of the brow” doctrine within intellectual property law protected the effort and expense required to create something worthy of copyright. The phrase comes from English translations of Genesis 3:19: “In the sweat of your face you will eat bread until you return to the ground, for out of it you were taken. For dust you are and to dust you will return.” This is the New World Translation, the Bible used among Jehovah’s Witnesses like Prince.
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