I want to talk about the recent Supreme Court copyright case involving the photographer Lynn Goldsmith. You might have heard of it, especially if you run in more artistic circles, but you probably read all about it from the perspective of the work of its more famous plaintiff, Andy Warhol.
In an opinion piece in the New York Times, Richard Meyer explained the case this way: “In a recent 7-to-2 decision, the court ruled that Andy Warhol infringed on Lynn Goldsmith’s copyright when, in 1984, he used her photograph of the pop star Prince as the source image for a series of silk-screen portraits.”
Except this isn’t accurate at all. Instead, what the court ruled is that the Andy Warhol Foundation (AWF) violated Lynn Goldsmith’s copyright when they licensed an image Warhol created of Prince in 1984 (using Goldsmith’s source image) to Conde Nast in 2016 to be used in a commemorative magazine after the musician’s death.
In the ruling, the infringement didn’t happen in 1984. It happened in 2016 when the AWF profited from an image they didn’t have the right to sell, because the original license for Goldsmith’s source image was for a one-time use, back in 1984.
This distinction is important because while many art historians and Warhol lovers are bemoaning this ruling as the end of art, I believe it’s actually a good thing for independent artists and creators, particularly photographers, illustrators, and graphic designers. (I also want to state that my endorsement of the result, in this case, does not in any way mean I agree with most of the Supreme Court’s recent decisions. But this one I happen to think they got right.)
There are people who don’t agree. I’ve read some pretty salty pieces online and I spent time reading the dissent itself, as well as the full ruling. (I went full-on nerd for this one.) The majority of the arguments against the ruling argue that it misses the point, that Warhol wasn’t wrong, because he’s a great artist who transformed Goldmsith’s work and transformation is a key factor in determining copyright infringement. (I’m paraphrasing here.)
But the dissent misses the point. Warhol (or in this case the AWF) profited off the labor of Goldsmith. The question isn’t whether or not some (or all of) Warhol’s works are “transformative.” The question that the majority opinion chose to answer was whether or not Goldsmith deserves a share of the profits from the use of her image as source material.
For this reason, regardless of legal precedent. I’m going to refer to this as the Goldsmith case. Because this isn’t a case about whether or not Warhol is a transformational genius. It’s a case about whether or not Goldsmith should be compensated for her creative labor. And I believe, as does the majority of the court, that she should be.
The dissent focuses on Warhol’s portraits of Marilyn Monroe as a testament to his genius at transforming images. And they have a point. The Marilyn portrait is substantially altered from the original source photo. But the image in question is not the Marilyn series. It is from the Prince series, and if you were to show someone both the Warhol image and Goldsmith’s photo, they would in no doubt be able to tell that the former was derived from the latter.
Furthermore, as someone familiar with silkscreen, I have some doubt about whether the simple act of silkscreening a photographic image is really that transformative. Before digital printing, silkscreen was a viable way to make a reproduction of a work, particularly a black and white photo.
But the question of transformation is a red herring. At the end of the day, this isn’t a case about art. It’s a case about labor exploitation. And to me, that’s a far more interesting angle then whether or not Warhol was a genius or a hack.
At the end of the day (and by that, I mean 1984) Goldsmith was paid $400 for a single use license of her image as an artistic source for an image to appear in a magazine. (The amount Warhol was paid by the magazine in 1984 is unspecified.) But in 2016, the AWF was paid an additional $10,000 for another work that used Goldsmith’s image as source material, to appear in a magazine. In this case, Goldsmith was given neither compensation or credit.
But the terms of the original contract state very clearly that the license was for a one-time use of the photo. The second image, used commercially in 2016, was not covered under the original agreement. But that second image could not exist without the work that was licensed from Goldsmith, even though she was not compensated for her labor.
This court decision should be celebrated by every independent artist, maker, and photographer creating images that they send out (and sell) to the world. I’ve lost track of the number of times over the past fifteen years I’ve seen an instance where the work of an independent artist or designer is used, without permission or compensation, by a larger corporation. It’s fairly common knowledge that certain larger companies, particularly fast fashion brands, employ “designers” whose job it is to scour the internet for popular imagery and quotes to use, with little to no “transformation,” on a variety of consumer products.
The Goldsmith decision offers protection to independent creators who are also in the business of applying their designs to commercially available products. Basically, if you sell your work, this decision says that someone else can’t sell a copy or version of your work in the same or similar markets without your permission or, ideally, compensation.
Part of the reason I’ve seen so many cases of big brands ripping off independent artists in the past fifteen years is because copyright litigation is an expensive proposition. Few artists can afford to take on the deep pockets of a major corporation, even if they are technically in the right and the company is in the wrong. And so most artists turn to the only court they can afford – the court of public opinion.
But I have to hope this decision changes things. If it establishes a strong precedent that one entity cannot use the work of another for commercial purposes without proper compensation (which I think it does) then it may make it easier for artist to receive compensation and damages from companies that use their work without obtaining proper licenses first.
I also have to hope that this decision lays the groundwork for putting some brakes on companies’ ability to use copyrighted images to train A.I. systems. (I originally phrased this sentence as “A.I. using copyrighted images” but I refuse to give A.I. sentience. A.I. doesn’t do anything. The creators and companies that develop and fund A.I. technologies are the ones making decisions, and they are the ones I want to hold accountable.)
In this context, I keep thinking about the examples I’ve seen of A.I. generated images that still have the ghost of the Getty Images watermark. Getty Images has filed a lawsuit against Stable Diffusion, a company that developed A.I. software and trained it (according to the suit and in my opinion, unlawfully) using Getty’s images.
At its core, A.I. isn’t magic, its theft of other people’s artistic and creative labor, plain and simple. To me, the way A.I. functions now is as problematic as the AWF getting paid for something based off Goldsmith’s image without properly compensating her. And I hope this case provides some legal precedent for that.
I’m not a lawyer or a judge, but I am someone who is passionate about seeing artists and creatives be fairly compensated for their time and artistic labor. Whether or not you think Warhol is a wildly transformative genius who changed the face of art is, to me, besides the point. The point is that Goldsmith is also an artist, and she deserves to be paid for her creative work, especially when someone else is profiting off of it.