The decision of the Federal Supreme Court in favor of the photographer Lynn Goldsmith in the process initiated by the Andy Warhol Foundation is considered historic and will have repercussions throughout the world, in an extremely confused moment regarding Copyrights. Platforms and technologies have democratized art, but they have also created more challenges in protecting artists. In the specific case of this discussion that created the landmark, the focus is on a portrait by Andy Warhol, made over a photo of Lynn Goldsmith of the artist Prince, in 1984.

The engraving made by Warhol on top of a black and white photo of the singer was commissioned by Vanity Fair magazine and was licensed by Lynn for the specific use of that publication only, always receiving credit for its authorship. However, when Prince died in 2016, an image of Warhol was reused on the cover of a magazine, without permission from the photographer or credit or payment, which started a legal process that took almost seven years to complete. The Foundation’s argument was that the published work was Warhol’s authorship alone and that his contribution became something original. The conclusion was different. “Goldsmith’s original works, as well as those of other photographers, are entitled to copyright protection, even against famous artists”, wrote Minister Sonia Sotomayor in a majority vote in a discussion that did not find unanimity even among the judges. There were 7 votes against 2.

The engraving named Orange Prince is part of a series of 14 silkscreens and two pencil drawings made by Andy Warhol, each based on a hitherto unpublished image taken by Lynn Goldsmith in 1981, for Newsweek magazine article. about the singer who was starting to make it big. To use this photo in 1984 in Vanity Fair, Condé Nast paid $400 to the agency representing the photographer, who was in Europe at the time, for the sole use of the image as an “artistic reference” for Warhol’s illustration, which entered the “Purple Fame” article about Prince’s mega-stardom. And it was precisely one of these images that the publisher selected for the cover of a special edition when he died, paying the Foundation $10,000 for its use, without crediting or consulting Lynn on the matter. It was only after seeing the 2016 magazine that the photographer became aware of Warhol’s work and became concerned about the violation of her copyright. Warhol’s representatives understood this to be a case of “fair use” of an advertising image, which Lynn countered was not the case. And the stalemate ended on May 18, without the right of another appeal, with the strength that the two works have the same purpose and character, marking the historic victory of the photographer.

Lynn Goldsmith’s exclusive chat about her career and the process can be read here. To bring a legal perspective, share below the comments of lawyer Pedro Campos, a specialist in Copyright, and the team at Diblasi, Parente e Associados, who analyzes the impact of the decision in Brazil.

Goldsmith vs Warhol Comments

By Pedro Campos

First, it is important to understand that, on the one hand, both Brazilian and American legislation provides that every author who creates a work has a Copyright over it, being able to control its use, reproduction, and transformation. On the other hand, in both countries, Copyright serves the social function of promoting the development of art, literature, and science and is limited by other fundamental rights, including freedom of expression and art.

In general, public opinion has a perception that Copyright represents a conflict only between authors and consumers, in a kind of simple conflict of interests in which authors want to have rights to profit from their works, while society wants to have the right to access and use these works free of charge. However, Warhol’s case demonstrates how this is an incomplete perception of Copyright: an author’s rights impact a wide range of interest groups, including the artistic production of other authors, making this relationship extremely complex.

In the case of Warhol, there are two very important incontrovertible facts: 1- Goldsmith’s photograph is a work protected by Copyright and 2- Warhol created his work based on Goldsmith’s photograph.

Regarding the first point, for a long time, Copyright in Brazil and in the world treated the art of photography with disdain and prejudice, even denying legal protection to several works because it was mistakenly understood that not every photograph was the result of a truly creative activity. This is a view overcome by the Brazilian Superior Courts who already recognize that Photographs are works protected by Copyright expressly in Article 7 of the Law. Even so, there is still a staggering number of judgments in State Courts of Justice that fail to recognize copyright protection for some photographs. In any case, in the case of Warhol, no one disputes that Goldsmith’s photograph is copyrighted.

Regarding the second point, it is a fact that Warhol’s work was created based on Goldsmith’s photography. The problem is that, at the limit, all artistic works are produced based on previous inspirations. It is impossible to create in a vacuum. Oasis created music inspired by the Beatles, who in turn created music inspired by Little Richard, who was deeply inspired by Billy Wright, and so on. Therefore, Copyright cannot prevent an author from being inspired by other previous authors, as this would prevent artistic, scientific, and literary development.

The difficulty is to understand to what extent a new creation is, in reality, merely inspired by another previous work or is a derivative work. It works as a kind of spectrum of creativity in which, the more creative a work is, the greater protection it will have, and, the less creative, the less protection it will have and may be subject to the control of other authors.

On a more serious level, an alleged second work that, in reality, adds no creative contribution to the previous one and is nothing more than a copy, can be considered an infringement or even plagiarism. An example would be another plastic artist copying a previous painting, only slightly changing the tonality of the colors used to fake that it is a new work. A case like this is prohibited by law, and may even lead to criminal convictions for the offender.

To an intermediate degree, a second work, building on the first, which incorporates elements of the original work but adds creative input, is a derivative work. An example of a derivative work is a movie created from a book. In this case, the author of the original work is the owner of the original work and has the right to prevent its transformation. However, the author of the derivative work owns the creative part that he added to the work. Therefore, as a general rule, for a magazine to reproduce a derivative work on its cover, it needs authorization from both the author of the original work and the author of the derivative work. This is just not true if there is any copyright limitation in the case. In Brazil, the limitations to Copyrights are foreseen in a non-exhaustive way in Law 9.610/96, and include, for example, the right to make parodies and to reproduce small excerpts.

At the most creative end of the spectrum are new works. A second work, inspired by previous works, but substantially different from them, without incorporating essential elements from a previous work and attributing a high degree of creativity. An example of a new work, inspired by other previous works, is a new song in the Rock and Roll genre. As much as there may be some coincidence of chords between the songs, or even of some words, this type of coincidence can be attributed to the creative form itself or the genre in which it is inserted. The song “Hard Day’s Night”, by the Beatles, is inspired by many previous Rock songs, but it is not possible to identify in the song a derivation of “Tutty Fruit”, by Little Richard, for example. Although both have similar rhythms.

The reality, however, is that in Brazil and in the world there are no clear and well-defined parameters to understand the exact point at which a new work becomes a derivative work, or when a derivative work becomes plagiarism. Many scholars, in fact, understand that it is impossible to define these parameters and that it is a type of judgment that depends deeply on each case, creating an inevitable situation of severe insecurity for the whole society.

The Copyright system necessarily needs to tolerate authors creating based on previous works, as this is the natural process of artistic creation. To impede inspiration would be, at the limit, to impede creation itself. On the other hand, this tolerance cannot be so great as to leave previous artists unprotected. For this reason, even in the case of using derivative works, or even literal reproductions of original works, there are limitations and possibilities of free use.

This tension was at the heart of Warhol’s case before the US Supreme Court. In the USA, § 107 of the Copyright Act of 1976 establishes the possibilities of “fair use”. That is situations in which the use of a work does not require authorization from its author. US law provides that in judging whether the use made of a work in any particular case is fair use, the factors to be considered must include(1) the purpose and character of the use, including whether such use is commercial in nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market or value of the copyrighted work.

Most Justices of the Supreme Court understood that (1) the purposes and uses of Goldsmith’s photography and Warhol’s work are confused, because, in addition to both being visual artistic representations, both were licensed for use in magazines (as occurred in the particular case). The majority of Justices also understood that the fact that (2) the nature of the creation is a photograph makes its use more restricted, because allowing the exploration of Warhol’s work, without the due authorization and remuneration of the photographer Goldsmith, “would potentially authorize a series of commercial copies of photographs, to be used for purposes that are substantially the same as the originals”.

Most Justices also understood that (3) Warhol’s work, while adding a creative contribution to photography, incorporated essential elements of Goldsmith’s original work – Prince’s own portrait, central to both works. In this sense, as mentioned, Warhol was entitled to the creative contribution he made, but the same was true of Goldsmith, whose creation served as the creative basis for Warhol’s final work.

Finally, (4) the Court further understood that the market treats, in that specific case, the use of Warhol’s work as a substitute market good for Goldsmith’s photography, since both could be used to illustrate the cover of the magazine about the Prince’s death. As such, Warhol’s work undermined demand for Goldsmith’s original photograph.

In Brazil, there is no forecast exactly analogous to the North American “fair use”. Here, the limitations to copyright are provided for in Law 9.610/96, but not exhaustively. The Courts – in my view correctly – routinely recognize possibilities of unauthorized uses by direct force of Constitutional Rights, including equal access to education and culture, artistic freedom, and expression.

In addition to the limitations expressed in national legislation, the Berne Convention still applies in Brazilian territory, which determines the “three-step test” as a way of assessing whether a work can be used without authorization. In summary, the test (which has already been used by Superior Courts in Brazil) establishes that a work can be used in certain special circumstances, provided that it does not harm the commercial exploitation of the original work and that it does not harm the interests of the author of the original work.
Some of these special circumstances include (i) paraphrases, in which the content of previous work is replicated, but in a modified form and with the addition of comments or new ideas, (ii) quotations and epigraphs, in which a small excerpt is reproduced for purposes of study, criticism or controversy, (iii) parodies, which are not necessarily comic, among others.

Although there are similarities between the Brazilian system of limitations to copyright based on specific legislation and the Federal Constitution and the American system of “fair use”, there is a significant distinction between the two: the “fair use” system has an “ecocentric” character. ”, as it has at its core the analysis of economic effects that the use of the original work causes to its author. On the other hand, the Brazilian system of limitations has its roots in constitutional rights that go beyond a mere economic analysis, reaching existential rights, above all the dignity of the human person in its dimensions of equality, freedom, solidarity, and psychophysical integrity. In Brazil, therefore, the extension of Copyright must necessarily, on a case-by-case basis, seek to reconcile the multiple nuclei of interest affected by the exclusive use of a work.

Given the complexity of the two countries’ systems and the degree of uncertainty in copyright systems in general, it is difficult to know whether the case of Goldsmith and Warhol would have the same outcome in Brazil. It is often difficult for even well-meaning people to know when and who to ask for permission to use a work. For this reason, especially in the so fast and interactive age of information, consulting specialists in Copyright is crucial in the trajectory of artists, media, and companies.

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