TRANSCRIPT Ep. 264: Supreme Court Rules: Can You Copy a Photo?


Miriam Schulman: This is something that I’ve been telling artists for years. You cannot just take a photograph off of the Internet and paint it. You can’t. It’s not legal. It’s never been legal. And guess what? Andy Warhol can’t do it either.

Speaker 2: It’s the Inspiration Place podcast with artist Miriam Schulman. Welcome to the Inspiration Place Podcast, an art world insider podcast for artists by an artist where each week we go behind the scenes to uncover the perspiration and inspiration behind the art. And now your host, Miriam Schulman.

Miriam Schulman: Well, hey there. Welcome to The Inspiration Place. This is your curator of inspiration, Miriam Schulman. And I am so excited that you’re here. So today we are talking about some breaking news. Breaking as of my recording it in May, perhaps not breaking for you when you’re listening to it in June, but I know not everybody is following this as closely as I am. So the story is – Did Andy Warhol or rather the Andy Warhol Foundation infringe on photographer Lynn Goldsmith? I talked about this before in episode number 215, when I learned that this case was going to appear before the Supreme Court. So what I’m going to do is I’m going to review the facts in the case. And then I’m going to share with you what the Supreme Court decided. And if I agree with the Supreme Court or not. So the Supreme Court started hearing this case in October. I don’t know exactly how the Supreme Court works. I think arguments are given to the Supreme Court. I think they’re given time to look at past legal cases. I don’t know exactly how it works, but I remember, again, we talked about this in December when I had my guest, Capucine Jenkins, and the Supreme Court had not decided, and they didn’t decide until May. So that was like a good almost 8 or 9 months that it’s been they’ve been working on it, which is, wow, I had no idea.

It takes that long for things to make its way through the Supreme Court anyway. So let me review the facts in the case. So back in 1981, Lynn Goldsmith took a photo of Prince. Now she is a very prominent photographer. She makes a living off of her photography. A lot of her work has appeared on album covers. I believe that some of her work also she gets paid for in places like Rolling Stone magazine and places like that. So in 1984, Vanity Fair wanted to do a cover of their magazine, and they commissioned Andy Warhol to make a painting based on her photograph. At that time, she was paid $400. So we’re not trying to decide right now if that was enough money back then. I would assume that $400, though, in 1980s is a lot more today. I’m not exactly sure how much, but that’s not what the problem is here. So she was paid $400 and it was to use her photograph to make one artwork for one cover. So licensing law, it’s very specific. It’ll say it covers this period of time or this many issues, whether it’s an exclusive right, what kind of rights they have. And this all makes sense and it’s very fair. And believe me, you want these types of rules in place because you don’t want people just coming on to the Internet, going to your website and stealing pictures of your art, whether you’re a photographer or a painter or some other kind of artist and just slapping it onto their magazine covers or t-shirts or products and not paying you, that’s not fair.

Especially with this photographer, she makes a living off of her photography. So all that was fine and legit and kosher back in 1984. And the reason they wanted they wanted to do it is that’s because Prince had his Purple Rain album and they wanted to highlight him in a very artful way. So from that same photograph, Andy Warhol made additional original paintings. And those additional original paintings have sold for millions of dollars. And again, that is not what’s at issue here. It’s not whether he has the right to make those additional artwork. And Lynn Goldsmith i=wasn’t even suing him over the sales of those artworks. So of those additional original artworks, Warhol made 16 different versions of that art. And all of this art passed to the Warhol Foundation when Andy Warhol died in 1987. And like I said, a lot of works in this series have sold for six figures or more, and the sales of the art is not covered by the licensing agreement made with Goldsmith. So why now? Okay. So after Prince died in 2016, Vanity Fair’s parent company, Condé Nast, published a special issue celebrating Prince’s life. And it paid the foundation, Andy Warhol Foundation $10,250 to use a different painting from that series for its cover.

Now, this different painting was still based on the same photograph, so it’s a different cover. And this time they didn’t pay Lynn Goldsmith anything or ask permission to use it. She didn’t receive any money. She didn’t receive any credit. So now the question remains, in order for this artwork to be considered part of fair use. So the law does allow you to use other imagery, but it has to be transformative. And the Supreme Court has said and they’ve said this in the past. It’s transformative if it adds something new with a further purpose or different character, altering the first with new expression, meaning or message. Okay. So now so back when this whole news broke out back in the fall, most of what my beef was about, the whole thing was the Supreme Court are not trained artists. They’re not art historians, they’re not art critics. And they’re just trying to decide if something’s transformative. And will they get to decide if this artwork has meaningfully been transformed. So what happened? And again, like I said back then, my beef was really more should the Supreme Court get to decide what is art? Should the government get to decide if this is art And then should of course, what should happen in this case? Should Ms. Goldsmith be entitled to additional compensation for them using her art? And is there damages to her for them using it without her permission? So when we come back, we are going to discuss what happened with the Supreme Court. So stay tuned.

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Miriam Schulman: So welcome back. All right. So I’m not going to keep you in suspense, and especially since this is something you can easily look up. But the Supreme Court did decide 7 to 2. They decided, wait a minute, wait. How many are there? Yeah, there’s nine Supreme Court justices, 7 to 2. They decided that, yes, Andy Warhol Foundation does owe Lynn Goldsmith and there’s a lot of brouhaha around this, not I think the Supreme Court made the right decision. That you look at the photograph and you look at the artwork and you can tell that the artwork came from the photograph. Therefore it was not substantially transformed. And this is something that I’ve been telling artists for years. You cannot just take a photograph off of the Internet and paint it. You can’t. It’s not legal. It’s never been legal. And guess what? Andy Warhol can’t do it either. Okay. Now the question is does this bring into legitimacy all of Andy Warhol’s work? Well, not exactly. That’s not what is at issue here, because Lynn Goldsmith was not suing Andy Warhol Foundation over the originals, although she could. She actually could. So it’s not bringing that into question.

But no, you can’t just copy photos from the Internet. It’s not legal. There are legal ways to do it. You can buy the rights to copy a photograph. You can do that from many sites. There are photography sites, iStock, Adobe, and you do need to read the fine print carefully whether derivative art is allowed. Derivative art, meaning you’re allowed to create an artwork from the photograph so you can buy permissions to do that. There are also photograph sites where you have free use to do that. The photographers have given you permission to use it in any way you want without compensation. So Unsplash is another one. And there’s lots of places where people will upload photographs for artists to use. So there are places you can do that, but you have to do it legally because it’s not fair to the photographers. This is how they make their living and you wouldn’t want anyone to do it to you if let’s just say if you’re like I said, if you’re not a photographer, if you are a painter and you have a deer and you’re, I don’t know, making things up now, let’s say you see a bear in your backyard and you take a picture and you paint the bear. And so you painted a picture from your bear and now somebody copies you, but now they do it in oil paint. You know, you have a watercolor painting now. They have an oil painting that’s based on your artwork.

No, you don’t want people doing it to you. So, yeah, it’s not legal. So that’s where the Supreme Court came down. They decided in favor of the plaintiff, Lynn Goldsmith. And the way this works, it came through the lower courts. So I think what happens is Supreme Court decided what the law is, but it’s a lower court that’s going to decide on the damages. Now, there is another court case right now that is in play. And to make things super confusing. The name of the artist is Prince. So when we return, I’m going to share the details of that case. It’s very similar. It’s all about this sort of copyright issue. So when we return, I will share that case with you.

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Miriam Schulman: Okay. So welcome back. Now we’re going to talk about Richard Prince. And he’s an artist. I don’t think we can actually call him a photographer. So he is — let’s just say artist. And there is a case that is in New York and in two copyright infringement lawsuits against the artist Richard Prince. And now what Richard Prince was doing was he was taking photographs that he found on the Internet, on Instagram and transforming them into artwork. And his artwork goes for, I believe, multiple tens of thousands of dollars in New York galleries. And so two of the photographers who he pulled their images were not happy about this. And this court case has not been decided yet. What’s happened so far is the Manhattan judge has refused to throw out the long-running copyright lawsuits against the artist. So the series is called the Instagram Source New Portraits. And it was a suite of images he appropriated from users of the platform and printed on canvass.


Basically, all he did was take Instagram pictures and print them on canvas. Now, sometimes he would add things to it, like he would add paint. So maybe some things were could be considered transformative. But mostly he just cropped it a little differently. Let me give you some specifics here. So one lawsuit was brought in 2016 by Donald Graham, and he accused Prince of violating the copyright of his 1998 photograph, Rastafarian smoking a joint. And then there’s another lawsuit. And I think both of these lawsuits have now been consolidated. The second lawsuit was also filed in 2016, and this one by Eric McNatt. Prince used the portrait of Kim Gordon, who is the co-founder of the band Sonic Youth. And this was commissioned for Paper magazine in 2014. So Prince exhibited the portrait of Gordon at Blooming Post Gallery in Tokyo in 2015. Now, both of these photographs, like you look at the photograph and you look at the art made by Richard Prince and it’s pretty much the same thing. So in order for it to fall under fair use, the artist and in this case the artist is Richard Prince, has to transform it in some way.

And Richard Prince was trying to say, well, I’m making a social commentary. I’m making a commentary on Instagram. So what the judge said in this is ultimately what I was saying before with the other with the Warhol/Prince case, not Richard Prince, but the musician Prince. Can the court can the government decide what’s art? And here’s the thing. Here’s where the judge ruled on this. He said he can’t read meaning or add meaning or use a caption to decide if it added or meaning to it. It needs to be looked basically by putting the two artwork side by side. The photographer’s photograph and what Richard Prince was calling his art and see if it was different and looking at them. They don’t look different. They’re pretty much the same. So ultimately and it was Judge Stein in this case, Judge Stein sided with the plaintiffs contention that work did not achieve the satirical or social commentary purposes required to legally qualify for fair or transformative use. So this case is still in court. And these lawsuits against Richard Prince will continue. But this is a more blatant example of how you can’t just take you can’t take photographs from the Internet. I’m so sorry. There are legal ways to do it. If you want to paint a Rastafarian, you don’t have one. You know, I’m going to look and see if right now if you can find one. All right. When we come back, I’ll let you know where you can legally copy a picture. Until then, stay tuned.

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Miriam Schulman: Welcome back. So I just went on to two different sites. I went on to Unsplash. And on Unsplash, if you type in Rastafarian, you will get 28 photos to choose from. And most of these actually do include a human in the photo. If you go on to a place like Adobe Stock where you have to pay for the photographs and you type in Rastafarian and you want to include people in those images, 13,000 choices come back and I’m just going to click onto one of them just to see what how much it costs to. All right. So there are different choices with how much it costs you. A standard license is free with your trial. And I think Adobe Stock has a monthly subscription or you can buy it for this particular one, extended license is $79. But you can actually buy a lot of images on this site for the use that you need it for relatively not that much money like 6 to $10. Extended license is something where if you want to put this onto a book and it’s the cover image and now not only are you making one artwork from it, perhaps, but you’re selling that image over and over and over again, and that’s what you would need an extended license for.

All right, my friend. Well, I hope that you got a lot out of this episode, so I know that my thoughts about this are a little controversial. Not everyone agrees with me. I would love to hear from you so you can DM me at @SchulmanArt. That’s S-C-H-U-L-M-A-N-A-R-T. Let me know what you think or right below the podcast on my page, which is you can go to because this is episode 264. You can comment there. Let me know what you think. Do you think the Supreme Court got it right? So, just so you know, the people who disagreed were Justice Roberts and Kagan. Justice Kagan were in the minority opinion. They believe that it should not it did not take into account art history. And I don’t think you should be taking into account art history. The law is the law. So is it legal or is it not? And it really honestly, it’s just not fair for us artists to copy photographers’ Srt. You have to respect other artists. Photographers are artists too, and you don’t want people copying our paintings and getting away with it. So same things should be true for the photographs.

All right, my friend. So that’s it for today. I’ll see you the same time, same place next week. And till then, stay inspired.

Speaker 2: Thank you for listening to The Inspiration Place podcast. Connect with us on Facebook at on Instagram @schulmanart and of course, on


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