Prince vs Andy Warhol: The lawsuit that could redefine appropriation in the art world

Pop art king Andy Warhol once said that art is anything you can get away with, an ethos that has come to define the use of ready-made materials in contemporary art, including the appropriation of works by other artists. An upcoming trial in his home country, the United States, will decide whether you can keep getting away with it after your death.

Photographer Lynn Goldsmith discovered in 2016 that Warhol’s “Prince series,” a set of 16 portraits of the musician Prince made in 1984, was extrapolated from a photograph she took. She reported this to the Andy Warhol Foundation, saying it was a violation of her copyright to her own work. The foundation in turn filed a lawsuit seeking a declaration that Warhol’s use of Goldsmith’s image was legitimate and no infringement had taken place. The first legal decision was in their favor, but an appeals court found that there was no “fair use” of the original image, as Warhol did not alter it significantly.

Blanca Cortés, an intellectual property lawyer and partner at the Spanish law firm Roca Junyent, explains that in the US legal system, fair use refers to “an exception to copyright” that is determined by a judge. In the case of Warhol’s “Prince Series” where the artist took Goldsmith’s portrait of the musician for his own use, ‘fair use’ would be judged according to whether the appropriation occurred for a substantially new and different artistic purpose.

By comparison, says Cortés, the European legal system requires a work appropriated by one artist from another to have the original artist’s permission, with an exception if it can be judged as “a parody, quotation or pastiche.” These exceptions are difficult to determine, given, for example, how many contemporary artworks use ready-made materials, Cortés notes, suggesting that “a Spanish judge could have reached the same conclusion as the American one.”

In 1966 the photographer Patricia Caulfield sued Warhol for using a photograph of hers in his series “Flowers.” Before coloring it in his usual style, Warhol had cropped and rotated the image. He made a handsome profit from the resulting works, selling them through the Leo Castelli gallery. Caulfield’s case was closed via an out-of-court settlement in which Warhol also delivered two paintings from the series to Caulfield and her lawyer.

“As a lawyer I can understand the ruling,” says Cortés.

In such a way, “we professionals are forced to combine the technicalities of the law with an understanding of how contemporary art works.”

Andy Warhol is one of the artists who has most recognizably and systematically used appropriation, one of the most characteristic creative strategies of art in the last century.

Appropriation in art consists of making a work of art from another pre-existing one. It is distinguished from plagiarism because, where the plagiarizing artist literally copies the work of another, the appropriator performs an action more similar to a quote or a tribute, although often the original authorship is only implicit. It is a practice inherent to postmodernism, where the new and the old are placed, sometimes indistinguishably, on the same plane. In cinema, two directors that use appropriation include Quentin Tarantino and Pedro Almodóvar - indeed, their references are so literal that no one could interpret them as plagiarism.

Appropriation became an artistic technique at the beginning of the 20th century, with artists such as Picasso and Braque proclaiming that a painting did not have to represent anything if it could present it directly, for example by inserting into it an object taken from the everyday world (in the most famous case, a piece of oilcloth with a grid pattern) as a collage.

Later, artists turned to advertising images, supermarket products, or even, at one point, other works of art for similar purposes. After Warhol, this has been the case with Sherrie Levine (the series After Walker Evans, for example, consists of photos shot on the pages of a catalog of that well-known American photographer), Richard Prince and Cindy Sherman. In 2009, an exhibition at the Metropolitan Museum of Art in New York titled The Pictures Generation, 1974–1984 brought together several of these artists in an ode to appropriation.

In Spain, Equipo Crónica, Antoni Muntadas or Rogelio López Cuenca come to mind. Also Cristina Garrido, whose series Local color is a foreign invention brings together fragments of the skies painted by great artists of the past such as Turner, Monet or Vermeer.

“Today, almost all artists, to a greater or lesser extent, make use of appropriation strategies,” says Garrido, citing the artists of The Pictures Generation and singling out the American Louise Lawler, famous for her photos of paintings hanging in museums. Outside the visual arts, Garrido adds: “The last work with appropriation moments that has interested me has been Motomami, Rosalía’s album, where the track “CUUUUUuuuuuute” features the voice of social media star Soytiet.”

Given that appropriation is so widespread and accepted in the art world, Blanca Cortés suggests that current rules around copyright could be made more flexible; balancing freedom of creativity with respect for artists’ legitimate interests.

“There should be more exceptions,” continues the lawyer, adding that the current requirement to obtain permission from the original artist to use their work, unless the appropriation falls into the small number of categories for exceptions, would disqualify many of “the last century’s essential artists.”

In his series “Gender Bender Covers,” David Trullo reproduced covers of well-known international magazine mastheads that allude to gender, such as Elle [French for ‘she’] and Lui [Italian for ‘he’]. In “Fauxtographies,” he made photo montages from images of well-known characters that appear authentic - a work showing Lorca and Dalí as a couple in love was shared on various social network profiles and in the media.

Of artists like himself Trullo says, “As children of Warhol, appropriation is one more resource.”

“I even appropriate things of mine from the 1990s. As always, a case like the Warhol lawsuit happens because someone can make money out of it. One has to wonder why it doesn’t happen with Warhol’s “Marilyn Monroe,” whose photo came out of the promotional material of a film studio that closed down.”

Mateo Maté is another artist who knows something about lawsuits and the complexity of deciding between plagiarism and appropriation. In 2010 Maté accused a well-known automotive brand and its advertising company of plagiarizing his installation I travel to know my geography, in which a toy car traveled through various landscapes of the Madrid region and was exhibited in 2010 at the Matadero contemporary art center.

The Spanish courts agreed with Maté, who says he received two judgements in his favor, of which the last is final. Maté explains that the case rested on the companies’ use of his work’s concept and language and the research and creative process behind it.

“The damage here,” says lawyer Blanca Cortés, “was not only economic but moral,” as there had been damage done to the language and concept of the artist’s work.

In other works, Maté has practiced what might be defined as archaeological appropriation. In “Canon,” a series of sculptures, he recast well-known works of Greco-Latin antiquity to reflect on ideas of what is original and what is reproduction and to point to the qualitative leaps that our value systems have undergone. In “Canon,” The Discobolus of Myron appeared as a black man, and the Esquiline Venus as a pregnant woman.

The artist explains that appropriation is “ultimately a sign of respect for what you appropriate, because you recognize its symbolic strength.”

“I act like a tennis player who takes advantage of the kinetic energy of these works, and in one fell swoop I give them another content. In the case of the Canon works, the idea was to remove that moral component from the originals and adapt them to another society in which we want to live. With these slight changes, I broaden [the works’] range of moral, ethical and aesthetic concepts.”

The history of art itself has also, to some extent, become an inexhaustible storehouse of resources where new artists search for and reuse the elements that best suit them at any given time. As such, says Cristina Garrido, “the role of the artist changes from being that of a manufacturer to a selector who, like a DJ, generates new meanings from found material.”

“I am interested in recycling these images as an act of visual ecology in coherence with the society in which I live.”

Or, as David Trullo puts it: “Why would I take new photos if others already exist and I’m not going to take better ones? The world is full of photos, so they are adopted and that’s it.”