Andy Warhol, Art, and Originality at the Supreme Court

The Supreme Court recently held, 7-2, that Andy Warhol violated Lynn Goldsmith's copyright when he re-used her photograph of Prince to make one of his famous silk screen portraits. (Sotomayor wrote the decision; Kagan and Roberts dissented) The ruling is very narrow, emphasizing that Warhol sold his image to magazine, when the original was also sold to a magazine, which was just too much like duplicating for the court.

But this is just one of an endless series of similar dilemmas that Warhol left behind. To the extent that his career was about anything other than self-promotion, it was about attacking the very notion of artistic originality and integrity. He loved the idea of selling works as his that he had never physically touched, everything done by assistants or machines. He loved asking other people for ideas, then selling them as his own. What, he once asked, is the difference between asking someone to suggest a subject and finding it in an old book? He deliberately blurred any boundary between original works and copies. It amuses me to no end that the art world simply cannot absord his attack on their core values, leading to lawsuits over which works are or are not "authentic" Warhols. He would have found that hilarious. 

In the NY Times, Richard Meyer argues that the Court was wrong: "Throughout his career, the artist was concerned not with copyright but with the right to copy, which he saw both as a creative method and a design for living." Warhol even once tried to duplicate himself:

When he tired of being himself, Warhol sometimes asked others to step into the role. In 1967, he hired the actor Allen Midgette to appear as Warhol on a national lecture tour. When, after the first few lectures, the ruse was exposed, Warhol responded, “He was better at it than I am.” From the artist’s perspective, Midgette was not only better at delivering remarks and answering questions from a public audience. He was better at being Warhol.

Warhol did not just copy, he attacked the notion that there was any difference between copying and creating. Our legal system, it turns out, cannot absord this any more than the art market can.

But it is a real issue: how original does any work of art have to be to qualify as an artist's own work? Take music; most of it is made within genres that set very narrow limits on the sounds and progressions and instruments that a composer can employ, and on the topics a lyricist can take up. To what extent is any pop song "original"? How many notes in a row can it share with some other song before that counts as copying? There is an old joke post about the Blues that goes around the internet, including a list of the names that women can and cannot have (Sadie, yes; Kimberly, no), the places the singer can be (prison, yes; golf course, no), and so on. It's funny because it's true, because all genres of art depend on very restricted sets of ideas and images.

In the 21st century, a vast amount of art relies on "sampling." Rappers sample beats and phrases; collage artists include iconic photos; comedians make jokes about each other's jokes. Meyer argues that Warhol was a prophet of this vision of art in a world absolutely inundated with images; not creation, but plucking something from the flood and calling it one's own.

We're going to see a new version of this confusion over art made by AI. Suppose I sit down with MidJourney and have it make illustrations for one of my new novels, and it copies the style of some well-known digital artist, or samples buildings and items of clothing from several artists. Who owns what? Do I get any credit for designing the scenario and specifying, say, "great wizard city with towers and flying boats about to be overwhelmed by a giant wave"? But then that was hardly original, was it? Suppose somebody finds that MidJourney copied an outfit from a video game character. But then suppose that outfit was basically just a doublet from a Botticelli painting and a sword from a 1970s book cover; does combining those in one character count as original?

And so on.

It may be that the trouble spawned by AI will be insoluble, and ruin art as a way to make a living. I doubt it; I think we will just continue to have the same fights we have had ever since copyright was invented, and the same struggles over what is original and what is just the same old thing.