Why is it that companies continue to act as if the creative efforts of artists are not worth financial compensation? The current case in point is the Warhol Foundation vs Lynne Goldsmith. The issue revolves around a photo that Goldsmith took of Prince in 1981 that Warhol used for a commission for Vanity Fair in 1984. At issue now is whether the Warhol Foundation is violating Goldsmiths copyright by selling the artwork that is based on her image without compensating her financially. There is an odd crossover of the legal and the aesthetic in a cases like this. We see a lot of similar arguments regarding “fair use” from various cases involving artists like Warhol, Jeff Koons, and Richard Prince to name the most known. My frustration arises from the bigger player using copyright laws and the grey area of “Fair use” to disenfranchise smaller artists. When the Warhol Foundation markets and sells an artwork based on a photograph that Warhol didn’t take without compensating the original photographer, it denies rights to not just that photographer, but all artists who haven’t risen to a level high enough to legally fight for compensation from big businesses. And let’s be clear, this is not a battle between artists. This is a conflict between an artist and a large company that profits from the continued sales of Warhol artwork. Often their income is based on LICENSING, which is the very thing that they are denying Goldsmith. The irony is that when Vanity Fair originally hired Warhol for the Prince artwork, they made a licensing agreement with Goldsmith to use her image. When did the original artist lose their copyright? If, from the very beginning, it was acknowledged that the original photo was not under the creative copyright of either the magazine or Warhol, then why does anyone think that suddenly the photographer no longer holds any rights? What was the original agreement? Was it a licensing contract that covered all uses into perpetuity? Probably not. Did the original contract cover the widest range of marketing and reproductive possibilities? Probably not. If this were to occur in the music industry, the result would be clear that the original composer must be compensated for the use of their original musical arrangement. But somehow the term “fair use” has created a legal grey zone within visual arts where the copyright ends up going to the strongest player. And that is where the problem lies. If a struggling artist can be exploited merely because they do not have/cannot afford effective legal consultation and representation, then the art industry is just another extreme caricature of exploitative capitalism where the players with more resources can violate the rights of those with less money.
