by Sharon Lorenzo

Prince Rogers Nelson, Andy Warhol and his lithographs of the singer

On October 12, 2022, the United States Supreme Court heard oral arguments for the case of photographer Lynn Goldsmith against the Warhol Foundation and the estate of Andy Warhol involving a matter with the use of the photograph of singer Prince Rogers Nelson which she had licensed to Vanity Fair magazine for a one time use in 1981. It was then appropriated by Warhol into a series of lithographs which he sold through his gallery and foundation. Lawyers for Goldsmith argued that the taking by Warhol was not a fair use of the image and he should have paid her a fee as the magazine did. The arguments can be listened to on the web page of www.supremecourt.gov. The debate amongst the court members was quite entertaining as Justice Thomas said he was a fan of Prince and listened to his songs on Thursday nights. A final ruling in the matter is expected in late June of 2023. The U. S. assistant attorney general, Yaira Dubin, filed an amicus brief and stated that they supported the claim of the photographer. The counsel for the Warhol Foundation, Roman Martinez, said that if the defense of fair use is undone, the art market and museum world will be upside down as one generation of artists always stand on the shoulders of those who have gone before such as in the following examples:[1]

Giorgione, 1510, Sleeping Venus, Dresden State Museum, Germany

Edouard Manet, 1863, Olympia, Musée D’Orsay, Paris, France

Seward Johnson, 2016, Olympia, Grounds for Sculpture, Hamilton, New Jersey

The case law of the fair use defense is complex and involves a close look as to whether or not the second work of art is transformative and substantially different from the first. This has also come up recently in the fashion world as Vogue editor, Anna Wintour, was spotted at a cocktail party for the New York Fashion Week with Mayor Eric Adams and designer Tory Burch in a gown designed for the British fashion label, Alexander McQueen. After the photo appeared in the New York Times, the gallery executive for Pace, Marc Glimcher, said he received over 100 phone calls asking if the skirt was authorized by artist, Adam Pendleton, whom they represent, as the skirt looks so much like his graffiti work, Who is the Queen?, which had shown at the Museum of Modern Art in 2021.

Adam Pendleton with his graffiti art at MOMA, 2021

Anna Wintour in Alexander McQueen skirt with Tory Burch, Oct. 2022

The founder of the Fashion Law Institute at Fordham University, Susan Scafidi, said that technology has fundamentally changed the creative process, and there is an assumption that everything on the internet is free for borrowing. She suggested that we need to develop a culture of acknowledgment that would be good for brands as well as designers and their customers. Adam Pendleton said he did not want money, just recognition for his contribution.

We will see how this new U.S. Supreme Court deals with the Warhol case and what happens in the art market after their ruling. It is clear that our copyright laws and standards need to be updated to cover the many issues that arise in the art and fashion worlds of today.

[1] Martha Lufkin, US Supreme Court Hears Oral Arguments in Warhol case, The Art Newspaper, October 12, 2022.