The Supreme Court got it wrong.
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. From a legal standpoint, the ruling was relatively narrow: it focused on the fact that the Warhol Foundation had licensed Warhol’s “Orange Prince” for reproduction in a magazine, the same purpose Goldsmith set for the original photograph. She was, therefore, owed part of that licensing fee.
As an art historian and Warhol scholar, I was asked to write an amicus brief on behalf of the Foundation. I argued that Warhol’s portraits transformed Goldsmith’s photograph (in scale, composition, medium, color and overall visual effect) to such a degree that they qualified as “fair use,” a doctrine that, in the name of freedom of expression, allows the adaptation of copyrighted materials under particular conditions.
There is much about Warhol and the question of originality, however, that I left out of my brief. Now that the case has been decided, I can share what I did not say to the Supreme Court. Most conspicuously, I did not say that fair use, while necessary as legal doctrine, does nothing to help us understand Warhol’s art.
Throughout his career, the artist was concerned not with copyright but with the right to copy, which he saw both as a creative method and a design for living.
In a 1963 interview, Warhol remarked, “I think somebody should be able to do all my paintings for me.” While he did not outsource all of his paintings, he frequently got friends and assistants to fulfill some part of the artistic process, whether printing, cropping, titling or even conceiving of his work. “I was never embarrassed,” he once commented, “about asking someone, literally, ‘What should I paint?’ because Pop comes from the outside” — meaning it arose from external ideas and images rather than from the artist’s unique vision. “And how is asking someone for ideas any different from looking for them in a magazine,” Warhol said.
His reliance on outside sources extended well beyond his art. When he tired of being himself, Warhol sometimes asked others to step into the role. In 1967, he hired the actor Allen Midgette to appear as Warhol on a national lecture tour. When, after the first few lectures, the ruse was exposed, Warhol responded, “He was better at it than I am.” From the artist’s perspective, Midgette was not only better at delivering remarks and answering questions from a public audience. He was better at being Warhol.
The copy that exceeds the original was a central component of Warhol’s sensibility. He repeated and remade found photographs into vibrant paintings and prints that were themselves repeated with varying degrees of visual difference. When he emerged on the gallery scene in the 1950s, the reproduction of popular and consumer images in fine art was thought unspeakably vulgar. Within a few years, however, both the art world and the commercial sphere recognized the value of Pop.
An anecdote I often tell my students is relevant here: In 1967, the Campbell’s Soup Company sent a letter to Random House, which was soon to publish a book about Warhol that included several reproductions of his famous soup can paintings. According to the letter, the company saw no copyright conflict between the Campbell’s logo and its repurposing by the artist. (In fact, his paintings had been good for business.) One important caveat, however, was specified: Warhol could not paint copies of the logo on actual soup cans, since that would place him in direct competition with the company. Warhol was happy to comply. He was, after all, making art, not soup.
Fans at Warhol’s public appearances began to bring actual Campbell’s soup cans for him to sign, as the objects had become so closely associated with Warhol that they functioned as ready-made surrogates for his work. Source material and artwork had, as it were, traded places.
Late in his career, Warhol focused on silks-creened portraits of celebrities, socialites, industrial magnates and anyone else who came up with the requisite fee: $25,000 for the portrait and $15,000 for each additional panel in contrasting colors, typically displayed alongside the first. To be portrayed by the artist was to be made over into a “Warhol.” An artistic method based on repetition and appropriation became, paradoxically, his signature style.
Warhol foresaw a future in which artists start not with the idea of a tabula rasa but with a society overflowing with images and information. That future is the moment we live in now, when contemporary artists draw freely on pre-existing photographs and material objects including, of course, digital renderings. Our own Warholian doubles aren’t actors presenting themselves as better versions of us — we have profiles on Instagram and Twitter to fulfill that purpose.
Legal disputes about visual appropriation persist, including lawsuits against the artists Barbara Kruger, Jeff Koons and Richard Prince, the last of whom is currently involved in two copyright infringement cases concerning his unauthorized use of Instagram photos. These disputes have hardly inhibited the practice of creative appropriation that Warhol pioneered. To the contrary, it has only become more prevalent since his death in 1987.
Given Warhol’s wish to move beyond the limits of self-expression, one can only imagine the delight he would have taken in applying generative A.I. to art. His famously expressed desire — “I want to be a machine” — has never been closer to realization than it is today. New technologies and software such as ChatGPT make it increasingly difficult to distinguish products of human intelligence from those of artificial simulation. Warhol would have savored such a problem (in a way that university professors grading student papers do not).
Warhol was most original in the way he dismantled the idea of originality. I did not include this formulation in my brief for fear that it was too abstruse. As it turned out, there was someone much more central to the proceedings who understood the point quite clearly. In her impassioned dissent, Justice Elena Kagan writes: “Warhol is a towering figure in modern art not despite but because of his use of source materials. His work — whether Soup Cans and Brillo Boxes or Marilyn and Prince — turned something not his into something all his own. Except that it also became all of ours, because his work today occupies a significant place not only in our museums but in our wider artistic culture.”
Warhol neither rips off nor transcends his sources. He retains them as flickering, repeatable afterimages while dramatically changing their pictorial appearance and effect. That’s what turns “something not his into something all his own.” Warhol’s slightly off kilter, Day-Glo brilliant pictures change the way we look at celebrity and consumer culture. His work, at its best, transforms us.
By the time the doctrine of fair use was codified in 1976, Warhol was the most famous living artist in the world and had made his most famous silkscreen paintings. Had he known about fair use, the artist likely would have been little concerned with legal repercussions. His work, like all good art, was not created to abide by the law.
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