Was Warhol's Transformative Art Transformative Enough? – New York University
NYU Law’s Amy Adler examines the role of fair use in contemporary art law ahead of the Supreme Court hearing of Warhol Foundation v. Goldsmith
Andy Warhol popularized the notion that everyone would eventually experience 15 minutes of fame. But even he couldn’t predict that someday, posthumously, he and Prince would be the headliners in a case headed to the US Supreme Court.
Litigation in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith began in 2017, when the art foundation preemptively sued celebrity photographer Lynn Goldsmith, who alleged copyright infringement by Warhol on a portrait she took of Prince. Goldsmith photographed the musician in 1981, and licensed the black and white portrait to Vanity Fair for an article titled “PURPLE FAME” in 1984. Warhol then cropped and colored the image , and its edited version appeared in the magazine. Before Warhol passed away in 1987, he created 15 more images from that same original Prince photo.
When Prince died in 2016, Vanity Fair printed one of them, which prompted Goldsmith’s claims of copyright infringement. Much of the litigation focused on whether or not Warhol had transformed Goldsmith’s photograph to give it new meaning, which is central to the Foundation’s argument that Warhol’s design is legal under the fair use doctrine.
So what constitutes fair use? Fair use doctrine permits third parties to use copyrighted work without an owner’s permission. The work may be used for news reporting, teaching, research, and other purposes.
Under the Copyright Act, four factors are considered in determining fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the potential market for or value of the copyrighted work.
In 2019, Judge John G. Koeltl of the Federal District Court in Manhattan ruled in favor of the Warhol Foundation, saying that Warhol had adequately transformed the photograph “from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” But shortly thereafter, a panel of the U.S. Court of Appeals for the Second Circuit in New York reversed Judge Koeltl’s ruling.
The Supreme Court has agreed to hear this dispute in its new term, which begins in October 2022. In the past, the court has deemed a work transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
NYU News spoke with Emily Kempin Professor of Law Amy Adler about fair use in contemporary art law and the implications of this dispute’s elevation to the Supreme Court. Adler is a leading expert on art law and the First Amendment.
After the U.S. Court of Appeals reversed Judge Koetl’s ruling, the Warhol Foundation argued that the ruling “casts a cloud of legal uncertainty over an entire genre of visual art” and would threaten “a sea-change in the law of copyright.” What makes this case novel?
As with so much of Warhol’s art, the paintings in this case were based on an underlying photograph taken by someone else. Here Warhol’s works were based on a photograph of the musician Prince, taken by Patricia Goldsmith, a well-known rock and roll photographer. Warhol’s traditional working method in painting and prints relied on underlying photographic images. The images of Prince at issue in this case fit into his genre of paintings based on photographs of celebrities; his most famous works in this genre are his portraits of Jackie Kennedy and Marylin Monroe. One of his Marylin Monroe paintings sold at auction this spring for $195,000,000.
At stake in the Supreme Court case is a fundamental question pivotal to contemporary art: how much can an artist build on previous work to create new work? So much creativity, not just in art but across all fields, depends on the answer to that question. The implications of this case are not just for visual art; the implications are for creativity itself. Everything is up for grabs right now.
What is fair use and why does it matter?
Fair use is a defense to copyright infringement. In this case, the Andy Warhol Foundation is arguing that Warhol copied the underlying image—of course he copied that image—but he did so for reasons that go to the very heart of why we have copyright in the first place. Copyright law exists to stimulate the production of new works, new ideas, new messages, new meanings, and new creativity. The Warhol estate argues that Warhol used Goldsmith’s copyrighted work in a way that did not violate copyright law, but instead fulfilled copyright’s very goal: to further new creativity for the benefit of the public.
It’s important to see that fair use—rather than a minor exception in copyright law—is instead at copyright’s center. It ensures that creators can create new works by building on old works, a process that is essential to creativity itself and thus to the very goal copyright exists to promote.
Fair use is also urgent because it’s one of the only two places in which the First Amendment provides a check on the limited monopoly that copyright affords to creators. The Supreme Court has explained that fair use is a First Amendment “safeguard.” The fair use check on copyright is essential to ensure that copyright functions as an “engine of free expression” rather than an obstacle to it.
Which of the four “fair use” factors do you anticipate will be the hardest part of making a ruling for the Supreme Court?
The first factor, the” purpose and character” of the use, presents a challenge. In the past twenty years, this factor, which generally turns on a determination of whether the new work “transforms” the previous work, giving it new meaning, message, purpose, or character, has generated huge amounts of litigation and legal scholarship.
When evaluating what makes an Andy Warhol painting of the musician different from Patricia Goldsmith’s photograph, we must consider the “meaning and message” of his art. Warhol’s entire body of work was an inquiry into questions about the nature of art itself, and into a world that was increasingly dominated by photography, celebrity, and pop culture. He was asking questions such as: What is the difference between pop culture and “high” art? What is the nature of photography? How should we think about originality and authorship in mediums like photography which are capable of unlimited copies? Coming on the heels of mid-century abstract expressionism in art, Warhol was destabilizing the idea of an original, authentic work of art. He was ultimately a philosopher of art, perhaps even more than an artist. This is why Warhol changed the history of art. If the point of copyright law is to promote creativity, then it seems obvious that we would want to protect an artist like Warhol.
But this presents a huge problem for courts. We certainly don’t want courts to play favorites and to value only famous artists. But there’s a deeper problem: To understand what makes Warhol’s work different from Goldsmith’s for purposes of fair use requires courts to adjudicate the “meaning and message” of art—and that is a preposterous position for courts to be in. But the danger is that if courts don’t do so or don’t find some way to find a proxy for the meaning and message of art, then art and creativity will be eviscerated. Of course Warhol was creating a new meaning and message— but how should courts understand that this is the enterprise he was engaging in and how should the Supreme Court guide lower courts. This is such a difficult line to draw, and yet drawing it is essential for copyright law and for the free speech values it promotes.
The other most prominent factor is the fourth, which examines the effect of the use upon the potential market for the copyrighted work. If the second work acts as a market substitute for the first, thus usurping demand, that weighs against a finding of fair use.
What makes this case and its elevation to the Supreme Court unique?
It’s the first time the Court has considered fair use in an artistic context in almost 30 years, when the Court explored fair use in music, and will be the first Supreme Court case addressing fair use in the visual arts. Last year the Supreme Court decided a significant case involving fair use of computer code, but the question of fair use in the visual arts has been an extraordinarily prominent and vexed problem for lower courts for years. People are holding their breath awaiting the outcome of this case. I know I’ve been holding my breath for a long time waiting for the Court to make a pronouncement here.
Several groups of art and law professors, as well as the Robert Rauschenberg Foundation, Roy Lichtenstein Foundation, and Brooklyn Museum have filed amicus briefs in support of the Warhol Foundation. What will the Supreme Court be looking for when reviewing them?
One thing foundations and museums have emphasized in their amicus briefs is that the Court must understand how important copying is to creativity in visual art. The museums want to protect artistic progress and they recognize that to do so, artists must have some room to build on, allude to, and transform works that came before them.
I also co-authored an amicus in this case, weighing in on the First Amendment implications of this decision because, as I mentioned previously, fair use embodies not just notions that are central to copyright law itself and to creativity, but also to the First Amendment. The right to express yourself sometimes requires you to draw on existing images or existing ideas. I think it’s so important for the Court to consider that fair use fulfills not only copyright values, but First Amendment ones as well. This case therefore has significant implications not only for the future of creativity, but also for free speech.
Micro galleries highlighting MMIWG stories aim to reconcile through knowledge and art – CBC.ca
When Sheila Joris stumbled upon a colourful display of books at her local Ikea store, the artwork on the fabric book covers immediately caught her eye.
What peaked her curiosity was the names of several missing and murdered Indigenous women and girls (MMIWG) from across Canada were printed in bright gold letters on the books.
Upon further research, the Strathroy, Ont., business owner was “astounded” to learn the number and stories of women and children whose families never heard from them again. It inspired Joris to showcase the display at the front window of her downtown store, KYIS Embroidery, to create more awareness.
“It’s just a way of me showing that I care,” she said. “Some of these families didn’t get any help to find their loved ones and I think it’s really sad. Their stories deserve to be heard.”
Joris’s shop is one of many spaces throughout the country taking part in the Canadian Library (TCL) project. A micro gallery art installation that aims to raise awareness around the MMIWG crisis.
WATCH | Business owner Sheila Joris expresses why she cares about the stories of MMIWG:
“The only way we’re ever going to achieve any sort of reconciliation and break down barriers is once there’s education for everyone and it starts by having these important conversations,” said Shanta Sundarason, a Toronto-based activist leading the grassroots project.
Since they started their efforts in October 2021, participants have collected book donations of any genre. They order fabric covers designed by Indigenous artists, each one with the name of a missing or murdered Indigenous woman or girl.
More than 8,000 books have been collected so far. Ultimately, they’ll be pooled together and displayed at a national museum or gallery by the end of this year, Sundarason said, adding that she wants them to be an educational tool to memorialize the lives lost.
It’s going to take a lot to build up trust between settlers and Indigenous people.– Shanta Sundarason, founder of TCL
Sundarason, who came to Canada from Singapore 12 years ago, felt a responsibility as an immigrant to educate herself and others on the stories of residential school survivors and the systemic discrimination that many Indigenous people still face, she said.
“To find out that there’s so many people in a country like Canada who still don’t have clean drinking water was very horrifying and there’s been so much that’s happened to these communities,” she said.
“It’s going to take a lot to build up trust between settlers and Indigenous people who have been trying for decades to tell us the stories of what they’ve been through.”
TCL is displayed at every Ikea store in Canada, as well as at cafés and hospitals, and more recently at the York Region District School Board, Sundarason said.
A collective step toward reconciliation, says elder
TCL has received overwhelming support from Indigenous elders. At first, many of them were skeptical of the project but eventually provided their guidance to its team, Sundarason said.
In Calgary, TCL is spearheaded by linda manyguns, a Blackfoot woman from Siksika Nation in southern Alberta who uses only lower-case letters for her name to acknowledge the Indigenous struggle for recognition.
Also Mount Royal University’s associate vice-president of Indigenization and decolonization, manyguns said she was fascinated by TCL’s inclusiveness and its ability to bring the MMIWG crisis to the forefront in a way that centres on their family members’ voices.
“There’s a huge chasm of emptiness between the Canadian society in general and the Indigenous experience,” she said.
“People need to understand that these are not bad women — they’re just encased in a social context that’s been created due to the colonial perspectives and placements of Aboriginal people and as a result, it puts them in situations which make them vulnerable.”
TCL creates a place for the MMIWG’s memories to live, while also giving Indigenous artists a platform to shine since the artwork attracts all kinds of people, manyguns said.
“It’s a collective step toward reconciliation because it’s an an ethical third space where people can come together to work together and create new frontiers. The only way that we can make change is through knowledge.”
She hopes TCL can motivate enough people to come together and create change so more names aren’t added to the list of missing Indigenous women and girls.
Previously unreleased concept art shows more of the delayed Mary Poppins ride planned for EPCOT at Walt Disney … – wdwmagic.com
A former Walt Disney Imagineer has posted concept art for the postponed Mary Poppins ride that was previously announced for EPCOT.
The new art shows an overhead plan view of the attraction, including the preshow area, the ride system, and the exit.
As speculated at the time of the ride’s announcement, the ride is a teacup-style spinning flat ride, taking place in a show building with decorated backgrounds.
Announced at the 2019 D23 EXPO, the expansion to the United Kingdom pavilion was to add an entirely new neighborhood at the pavilion, complete with a ride. In the plans, guests would step in time down Cherry Tree Lane past Admiral Boom’s house, then enter Number 17, home of the Banks family, where their adventure would begin.
Disney officially announced that the United Kingdom Pavilion expansion was paused in July 2020 as the park reopened from the COVID-19 shutdown. In addition to pausing Mary Poppins, Disney also put a halt to the Spaceship Earth update.
The last official comment on the Mary Poppins ride for EPCOT came from then Disney CEO Bob Chapek, who said in response to a question at the 2022 Shareholder Meeting, that the project is in a holding pattern currently, but looks forward to refunding the Mary Poppins ride in the future.
A lot has changed at Disney since then, and it remains to be seen if the Mary Poppins expansion at the United Kingdom pavilion in EPCOT will be built.
Security guard, schoolgirl, Snow White … the artist who films herself undercover – The Guardian
What to do if a new colleague is over touchy feely when they greet you in the office? Or if a trainee sits staring into space all day doing “brain work”? Finnish artist Pilvi Takala specialises in orchestrating such awkward situations, in a mission to test how we navigate social conventions. “I think discomfort is a very productive space,” she says when we speak on Zoom before a show of her video installations, aptly titled On Discomfort. “It’s where we reassess and negotiate norms.”
Wearing a disguise and an assumed identity, Takala has upset the workings of theme parks, corporations, shopping malls and even the European parliament, exposing the tacit rules that govern our capitalist system. The videos of her in action are often funny. In Real Snow White, she tries and fails to get into Disneyland Paris dressed as the cartoon character. A guard says: “You cannot go to the park like this because the children will think you are Snow White. There’s a real Snow White in the park.” Takala replies: “I thought the real Snow White was a drawing.”
But Takala’s performances, videos and installations are underpinned by serious social inquiry. Her practice explores the shifting fault lines of what is considered acceptable behaviour and why, from the perspective of insider and outsider. In 2018’s The Stroker, where she pretended to be a wellness consultant at Second Home, a hip Hackney co-workplace for entrepreneurs, people were clearly conflicted about whether they were entitled to find her touchy greetings invasive; they increasingly gave her a wide berth as she passed. For 2008’s The Trainee, Takala was an intern for a month at the consulting firm Deloitte, where her apparent inaction – spending entire days either “thinking” or just going up and down in the lift – made her co-workers angry and frustrated, even though they themselves were frequently going through the motions of working while in fact browsing the internet. Both films reveal a progression of behavioural responses by workers who soon find non-conformity threatening and “weird”. “It’s very human to create these strict normative systems that we all follow and we feel in a way good when we’re inside,” says Takala, “but of course it’s mega oppressive.”
The artist’s performative interventions have become more complex over the past two decades. Where her early works often consisted of films of one-off performances, she has subsequently experimented with hidden cameras and re-enactment of actions that have taken place over days or weeks. Last year’s ambitious multi-channel video installation Close Watch was the result of six months working under cover as a security guard for Securitas at one of Finland’s biggest shopping malls. Presented at the Finnish pavilion for the 2022 Venice Biennale, it reflected on the opaque parameters of authority exercised by private companies over citizens. The films are presented in two rooms separated by a one-way police mirror, emphasising the unequal power dynamic of our surveilled existence.
Takala’s role at Securitas required four weeks of training. She was eventually outed two weeks before the end of her stint by colleagues who had Googled her. After she finished at the firm, Takala invited her former workmates to join her in workshops with specialised actors to role play problematic issues she had encountered on the job. The films of these workshops form the gripping centrepiece of the installation, showing the guards acting out and debating scenarios involving the use of excessive force by a colleague, toxic masculinity in the control room and the casual ubiquity of racist jokes.
In one particularly disturbing sequence, the group watches three actors re-enact a situation in which a guard manhandles a drunk member of public. In a lively discussion afterward, the guards are pretty much unanimous that loyalty to colleagues would take precedence over pursuing justice for a victim. But as they rationalise and wrestle with these dilemmas and their own accountability, they take on board different views. “We’re allowed to interfere with other people’s basic rights,” concedes one guard, adding, “It’s frighteningly easy to abuse. I’ve seen people work in this field only to hurt others.”
Observing this open dialogue within the safe space of the workshops is partly what makes Close Watch so powerful and moving; it feels like a constructive template for addressing similar problems in society at large, rather than simply rehashing well-worn criticisms of the underpaid and under-regulated security industry. That said, Takala hopes her work will have an impact on guarding at Securitas. “It’s not like we change everything and it’s happy ever after,” she says. “But I wanted to engage with this industry from a hopeful place.” The company has since instituted diversity and unconscious bias training for all employees, which may or may not be a result of suggestions she made after working there.
Takala’s infiltration of social communities began in 2004 while on an exchange at the Glasgow School of Art. She was struck by the coexistence of two self-contained groups – that of the Glasgow art students and that of the nearby Catholic girls’ school – whose different attire created a glass wall between them. She decided to investigate what would happen if she donned the school uniform, effectively switching tribes. “There’s a lot of heavy taboos hanging over this uniform, even though I wasn’t doing anything illegal or, to me, ethically problematic,” she says. Suddenly she found she was accepted by the pupils and ignored by her fellow art students. “I had the wrong dress code, I was invisible,” she explains. Her ruse was discovered when a teacher told her off for wearing the wrong scarf. The Glasgow School of Art was furious and failed her paper, but Takala remained adamant that the strong response to her action proved its success.
Since then Takala has put numerous social groupings under the microscope: she has played an overdressed wallflower at a traditional dance event in Estonia; carried a transparent bag full of cash around a shopping mall – to the consternation of shoppers and shopkeepers alike – and wandered around the European parliament in T-shirts printed with texts highlighting the institution’s inconsistent dress policy.
Does she ever get embarrassed? “I have those same feelings as anybody would in those situations, but they’re actually information for me that it’s working,” Takala says. Her social experiments involve intense emotional labour – “I get a lot of rejection,” she notes. But it’s exhilarating when she senses that something is working: “I feel like it’s very awkward. These people don’t like what I’m doing now. Great!”
Micro galleries highlighting MMIWG stories aim to reconcile through knowledge and art – CBC.ca
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