As a landmark copyright case involving a series of Andy Warhol paintings heads to the United States Supreme Court, a law professor has a little fun with the concept.
Brian L. Frye, who describes himself as a “dogecoin professor of law and fraud at the University of Kentucky,” recently hit a collection of 16 NFTss based on the Warhol series, itself based on a photograph of Prince taken by Lynn Goldsmith in 1981. Warhol’s works are now the subject of an upcoming US Supreme Court Casewho will decide once and for all whether the appropriation artist violated Goldsmith’s copyright by using his image of Prince without permission.
First brought to light in 2017, the case stems from a photograph Goldsmith took of Prince in 1981 while on a mission to Newsweek. It was never published, but who vanity lounge licensed it in 1984 to be used as material for a Warhol illustration, which he eventually turned into an entire series at the end”purple rain” icon.
Goldsmith, for his part, only discovered Warhol’s works in 2016, when vanity lounge republished them after Prince’s death. The publication prompted the Andy Warhol Foundation to deposit a preventive trial asking the court for a declaratory judgment declaring that the “Prince Series” did not infringe Goldsmith’s copyright.
Goldsmith followed later with a countersuit, but the court ruled in 2019 that Warhol’s use was fair and did not infringe the photographer’s copyright. On appeal, however, in 2021, this decision was reversed after a higher court accepted Goldsmith’s claim that the two artists’ works were “substantially similar…in law.”
Both of these decisions are now before the United States Supreme Court in what the Warhol Foundation says is a case that could “cast a cloud of legal uncertainty over an entire genre of visual art”, threatening what it calls “a radical change in copyright law.
In response to the complexity of this case, or perhaps even adding to it, Frye said he decided to strike the works (based on Warhol’s paintings of Goldsmith’s photographs) in order to draw attention to the case.
“I used images of Warhol’s paintings in order to comment on the litigation and to criticize the folly of excessive copyright protection,” Frye told Artnet News.
He believes that copyright law does not copyright its derivative works. “Using images of the paintings to sell the NFTs cannot be infringed, at least as far as Warhol is concerned, because there is no copyright to infringe, at least for now,” said said Frye.
Frye may be right. When the Second Circuit ruled that Warhol’s “Prince series” paintings infringed copyright on Goldsmith’s photo, it also ruled that the Warhols were not copyrighted, which means that Frye is free to create NFTs in the image of these paintings.
“Unless and until the Supreme Court overturns the Second Circuit’s decision, Warhol’s ‘Prince Series’ paintings are in the public domain.”
“Besides,” Frye continued, “I’m not the first to use images of Warhol’s paintings to comment on the litigation. The case has been widely reported and images of Warhol’s paintings are all over the internet. If I am an infringer of Goldsmith’s copyright, so is every publication that has used images of Warhol’s paintings to illustrate a story about the lawsuit.
“Of course,” Frye added, “I sell NFTs and they sell ads, but what’s the difference? We’re all selling something.
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