The Warhol / Goldsmith decision places a strong marker in interpreting the notion of fair use when it comes to derivative works. In this instance, the photographer Goldsmith who had taken a photograph of Price destined to be licensed to magazines, claimed that Warhol’s Orange Prince as licensed to Conde Nast for publication in Vanity Fair infringed her copyright and deprived her of the chance to be remunerated for her work. The Warhol Foundation argued that Warhol’s work should benefit from the exception of fair use on the grounds that Orange Prince had transformed the first work and given it a new meaning.
The Supreme Court ruled in favour of Goldsmith. Many commentators are claiming that this ruling will bridle the ability of artists to create. However, this ruling does not fundamentally challenge the ability of artists to make derivative works from the past: it simply subjects the use of a prior work to the authorization of the first artist (the art world in France seems to have accommodated itself to this rule since 1791 … difficult to sustain that French art has suffered as a result).
The ruling stresses that the question resides in finding a balance between two rights (the copyright of the first artist and the exception to that prior right that a second artist may be able to claim based on fair use).

The first right has a limited protection in time (70 years after the death of the artis). After that time period has lapsed the work falls into the public domain and any artist can copy/transform it freely.
The latter can always ask for an authorization to produce a work derived from the first… and that is something to be negotiated. If the first author demands an exorbitant price, there may be a cause for the second artist to claim an abuse of rights on the part of the first author?
While we read a host of articles loudly relaying the dissenting opinion, the two examples it gives to argue that creativity will be bridled as a result of the decision are completely flawed : Bacon’s Screaming pope inspired by Velasquez would no longer be permitted.

This is wrong on two counts:
– Firstly when Bacon painted his Popes, Velasquez work had long fallen into the public domain by modern standards – Bacon was free to do as he wished with the painting
– Secondly, is Bacon’s work a derivative work or a work inspired by Velasquez? Even if Velasquez’ painting had still been protected by copyright, to what extent is Velasquez’ painting contained in Bacon’s screaming pope? Other than the position of an ecclesiastic figure in a chair (which would qualify as a generic idea or concept). How has Bacon taken the first work to incorporate it into his own? One could well argue that he has taken inspiration but has not gone beyond such that he has created a new and independent work.
The second example given by the dissenting opinion is that of Titian’s Venus which would have been prohibited on the basis that it was a secondary work derived from Giorgione’s Sleeping Venus.

Again this example is fallacious. This time, both paintings are contemporary to one another. Both bear similarities but both adopt a « genre » – that of a reclining Venus, which was a standard format of the era. IF the two Venus are in a reclined posture, one, demure, is sleeping innocently, the other looks at the onlooker directly in the eyes, provocative and inviting. One is – in classic style – set against a background of an idealized nature. The other is enclosed in a room.
Details (the dog, the governess and the little girl rummaging through a trunk) tell a whole parallel story. There is no doubt that Titian created an independent work and that it was not in any way breaching the « copyright » of Giorgione. One detail alone is to be found in both paintings – the gesture of the hand, fingers curled, drawing attention to the pubis… but it so happens that Titian worked on Giorgione’s Venus … who is to know whether this particular gesture was not the work of Titian in the first place?

Mᵉ OLIVIA DHORDAIN
Avocate
9 Sept. 2024

Conversely, the Goldsmith photo has undeniably been incorporated as is into Warhol’s Orange Prince. If Warhol has transformed the photograph is a striking and aesthetic manner, the basis of the serigraphy remains Goldsmith’s photograph. Rarely has the adage Omnis comparatio claudicat – all comparison is lame – rung truer.