Dear Doc:I heard that it’s now legal to take someone else’s photograph, mess with it, and sell it as your own. That can’t be right, right? Please tell me that the copyright law is not that insane.

Every person who ever took a photo.  

Dear Every:  

Yes, I am afraid that copyright law has become deranged. It is now, in the United States at least, completely legal to profit by taking someone else’s copyrighted photo, messing with it, and then selling or publishing it. Why? Well that requires a bit of background…

A Tale of Kings and Princes…  

Back in 2015, an artist named Richard Prince was sued for copyright infringement over his work “New Portraits”, which were photographic Instagram posts by other people that he printed out and to which he added comments, without the permission of the original poster. This was not the first time that Prince had taken someone else’s photo and sold it in an art gallery.  He famously used an advertisement for Marlboro cigarettes, and had a run-in in federal court with photographer Patrick Cariou, whose photos of Rastafarians were used by Mr. Prince in collages and paintings. (The Doc has written about Mr. Prince in the past) In each case, Prince largely prevailed in the law suits, because the New York federal courts determined that he had “transformed” the photos he used without permission.  

Now the Doc has searched the text of the Copyright statute (17 U.S.C. §101, et seq.) and has yet to find any mention of “transforming” as a get-out-of-jail-free-card for copyright infringement. The law does contain a provision for “fair use” of copyrighted works (17 U.S.C. §107) that allows use without permission for, “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” To the Doc, at least, making new commercial art and selling it for hundreds of thousands of dollars to art collectors does not fall into one of these categories. Rather, it is making what the law calls a “derivative work” – one that is based on another work, rather than wholly original. Derivative works require the permission of the owner of copyright in the underlying work, if it is not expired (that’s why it was OK for Marcel Duchamps to draw a mustache on the Mona Lisa…DaVinci created it before copyright laws were written!)  

Which brings us to another Prince…the Purple One. According to Smithsonian Magazine: In 1981 celebrity portrait photographer Lynn Goldsmith did a photo-shoot with Prince for Newsweek.  The photos did not run, but in 1984 Vanity Fair licensed one of the black-and-white photos from Goldsmith for $400. Andy Warhol was given the image and was asked to create an illustration. Warhol created 16 works based on the photo, which collectively became known as the Prince Series. One of them, a purple image of the pop star, ran alongside the article.  Goldsmith, however, did not see the work at the time. Only after Vanity Fair republished the article online along with the Warhol illustration after Prince’s death in 2016, did Goldsmith see it for the first time.  

The Warhol Foundation then brought a law suit against Goldsmith, asking the Court to declare that Warhol’s use of the original photo to make his 16 new silkscreens was “fair use”. U.S. District Judge John G. Koeltl ruled that it was. In his opinion, the judge explained, “The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince – in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”  

Photographer Goldsmith commented that she intends to appeal. Goldsmith has spent $400,000 on the case and expects it will cost $2.5 million before it’s done. (The Doc reminds you that win or lose, the lawyers are the real winners here.) If she loses her appeal, she may also have to pay the Warhol Foundation’s expenses. “I know that some people think that I started this, and I’m trying to make money. That’s ridiculous-the Warhol Foundation sued me first for my own copyrighted photograph. My hope is that more of the visual community, particularly photographers, stand up along with me to say that your work cannot just be taken from you without your permission, and to show their support of the importance of what the copyright law can mean not only for me, but for future generations.”  

Where will this end up? The Doc has no idea, but in other countries, artists have “moral rights” to object to subsequent uses of their work without permission. Maybe it’s too much to hope for, but the Doc thinks a bit more moral behavior might not be such a bad thing here in the US, too.  

Have a question about what use is fair? About other intellectual property issues? Ask the attorneys at LW&H – they stay on top of all that kind of stuff.  

Until next month,
The Doc 

— Lawrence A. Husick, Esq.