This is the second of a three-part series commenting on the Supreme Court’s recent decision in Warhol Foundation v. Goldsmith. (Read Part 1: the new law of creation.)
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For most of human history, artists have taken from each other, building new from what they have stolen. Almost all of Andy Warhol’s body of work—including a series of silk-screen prints and drawings of the rock star Prince—is based on photographs taken by others. In 2016, after Prince’s death, Condé Nast use one of those images to illustrate the cover of a commemorative magazine.
Our Supreme Court has now decided that this use violated the copyright of photographer Lynn Goldsmith. The dissent by Justice Kagan sums up the Court’s opinion: “It is not just that the majority does not realize how much Warhol added; it is that the majority does not care.” The notion that one artist can safely transform the work of another by adding new creative meaning or character seems to be dead.
What does that now mean for the vast body of Warhol’s creative work, including his legendary images (also based on photos by others) of Marilyn, Liz, Jackie, and Elvis?
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Warhol’s Prince series is not the basis for his enduring reputation. So, to examine the impact of this decision, let’s look instead at his iconic Marilyn screen prints which are among the most recognizable—and valuable—works of 20th century art. Warhol’s Marilyns are based on a black and white photo by Eugene Korman, a publicity photographer for 20th Century Fox. It was used to promote the then unknown Monroe’s breakout role as Rose in the 1953 film Niagara. In the run-of-the-mill studio publicity shot for a forgettable movie Monroe is posing as her femme fatale character in the film.
Right: One of Warhol’s Marilyns.
In 2022, one of Warhol’s Marilyns was auctioned at Christie’s for $195 million, the highest price ever paid for a 20th Century work of art. For comparison, one of Korman’s photos of Monroe was sold by an on-line auction site for a “final bid” of €265 (about $300). Ironically, its primary selling point was that it had been the basis for Warhol’s version. Are the two works in competition? Are they even on the same commercial planet? And—this is the key question—would (assume the copyright had not expired) Korman or 20th Century Fox have the right to prohibit the use of one of Warhol’s Marilyns in a publication about Monroe?
That is not the only problem. The majority opinion took pains to state that it was only ruling on Condé Nast’s use of Orange Prince in its special edition commemoration magazine and was expressing “no opinion” as to the creation, display, or sale of the original Prince Series (or of any other of Warhol’s derivative works). But the language of the decision points firmly to a broader rule—and it is that language that lower courts now must follow. As long, the Court held, as the images “share the same or highly similar purposes, and the secondary use is of a commercial nature,” creative transformation no longer justifies appropriation. Is a commercial art gallery willing to risk litigation if it dares to offer one of Warhol’s Prince or Marilyn silk-screens “for sale?” What if another commercial gallery across town is offering a retrospective survey of Goldsmith’s rock star photos or Korman’s publicity shots? Are they then in competition?
This is not just about Warhol. He is only one of many—several famous—appropriations artists. Roy Lichtenstein’s iconic painting In the Car, 1963, for example, was taken (as was much of his work) from a crop of a comic book page. It has been reproduced numerous times, and it is fair to assume that it has commercial value. Jeff Koons is another art “thief” who pads his checkbook with stolen images. Here he is with an iconic Popeye.
Long ago and far away
There is nothing new about this. In her dissent, Justice Kagan reproduces three classic reclining nudes that are clearly copies of one another, one by Giorgione ca. 1510, another by Titian, 1538, and a third, Manet’s famous Olympia, 1863. Each version reflected a different time and vision—and Manet’s copy of a copy is often credited as the “pivotal moment in art history” that ushered in modernism.
Manet was on both ends of the thieving. For an interesting exercise, Google Image his Olympia and you will find scores of copies, ranging from student exercises to clever parodies, including several versions in which the ladies are replaced by posing kittens. But the most extensive and valuable theft from Manet may be Picasso’s twenty-seven paintings, 140 drawings, and four linoleum print variations of Le Dejeuner sur L’Herbe (Luncheon on the Grass).
Right: One of Picasso’s “Luncheon on the Grass” paintings.
Manet could hardly have complained, since he appropriated the image from a corner of a Renaissance engraving, The Judgment of Paris, by Marcantonio Raimondi—which is based in turn on a design by Raphael.
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Perhaps, however, my favorite examples of art theft are Van Gogh’s copies after Jean-François Millet, including the one below, First Steps After Millet. These were made in 1889-90 after Van Gogh admitted himself to an asylum in Saint-Rémy.
While there, his brother, Theo, sent him black-and-white copies of Millet’s etchings which Van Gogh used as a basis for twenty-one paintings. He and Theo frequently corresponded so we know much about his creative thoughts as he painted these “translations,” which he likened to a musician’s interpretation of a composer’s work. Through a distinctive use of color, perspective, and technique, Van Gogh added his own spiritual meaning and emotional content. But they are clearly appropriations. Powerful ones.
Right: Van Gogh, “First Steps after Millet,” Metropolitan Museum of Art.
Both great artists sought buyers for their work (Millet being far more successful at the time). The works, therefore, had, in the Court’s words, a “highly similar purpose * * * of a commercial nature.” Should it matter that today museums would covet, and collectors would pay fortunes for, either the Millet or the Van Gogh versions? Does that put the Van Gogh in unfair competition with the Millet? Would it make a difference if, as in Warhol v. Goldsmith, we were looking at reproduction rights, and the Van Gogh had been chosen over the Millet to illustrate an article on traditional child raising in rural France?
If we keep turning the clock back, we find that the impulse to take and transform can be traced—at least—to antiquity. Several centuries before Van Gogh, when Christianity was starting to take root in the Roman Empire, statues and figurines of the Egyptian goddess Isis and her infant god-son Horus were already revered throughout the Mediterranean region and had been incorporated into the Roman pantheon. Over time, stylized Egyptian imagery transformed into the realistic grace of Roman statuary.
Right: “Isis Nursing,” ca. First Century A.D., Vatican Museum, Pio Clementino Gallery.
Look familiar? Indeed, there is evidence that images of Isis (both with and without child) were simply renamed as the new religion took hold. Madonna and child preceded Christianity by several hundred years. Fair is fair as the Romans had stolen their sacred imagery from the Greeks. There is an entire gallery in the Metropolitan Museum dedicated to Roman copies of Greek originals, many of them gods and goddesses. It should be no surprise that the fruit of mankind’s creative impulses has a way of lodging in and reemerging from its audiences’ imagination. After all, to create is to share.
The new lay of the land
There is no way around it: The thieving does not stop, nor should it . . . nor can it. The creations of the past are the bricks for the creations of the future. Warhol’s vision invested our culture with a new, brash way of seeing—one that we now take for granted—but he could not have done it without taking from the work of talented photographers like Goldsmith and Korman. Creation takes teamwork. One artist opens the door and others burst through it.
Now, after Warhol v. Goldsmith, there is a new, uncertain, lay of the land. And that sets the stage for Part 3 of this article, in which I hope to bring the matter close to home and share with you the insights and concerns of Oregon art lovers, artists, gallerists, and curators—including those of you, our readers. Please add your thoughts, point out my mistakes, take me to task, and tell us all what I might have missed. Reply to this Art Letter or write David Slader at dslader46@gmail.com.
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Read my Art Letter essays in Oregon ArtsWatch.
