Andy The Appropriator: The Copyright Battles You Won’t Hear About at The Whitney’s Warhol Exhibit

Kate Donohue

“Andy Warhol—From A to B And Back Again” opened at The Whitney Museum of American Art on November 12, 2018.  The retrospective exhibit includes 350 works that span three floors of the museum. The exhibition, which is considerably larger than the typical feature at The Whitney, has been a rousing success. It’s gotten rave reviews in The New York Times and The New Yorker and has become one of The Whitney’s most well-attended exhibits of all time.  

I first became interested in Andy Warhol after reading Patti Smith’s Just Kids this summer. He was woven throughout the narrative as the gatekeeper to the New York City art scene for the young artists residing at the Chelsea Hotel. Sitting at his table in the back room at Max’s Kansas City was the first step to being taken seriously in the city’s artistic underbelly, and fledgling actresses like Edie Sedgwick shot to stardom after they were featured in the films he shot at The Factory. One of these women, Valerie Solanas, tried to murder Warhol in his studio in 1968. He survived the attempt and his reputation became even more mythical as a result.

Ever since reading Smith’s reverential portrayal, I began to notice Warhol everywhere. In the last week alone, I saw “Warhol & Mapplethorpe: Guise & Dolls” displayed prominently at Book Culture, heard him mentioned in “Victoria Gotti: My Father’s Daughter,” and saw an ad on The Cut for a new line of Uniqlo T-shirts printed with his Campbell’s soup cans. Burger King even included him in its Super Bowl commercial—arguably the most important marketing campaign of the year—by featuring a clip from one of his films in which he silently unwraps and eats a Whopper.

It is for this exact reason that his exhibition at The Whitney has been so successful. Most people know of Andy Warhol and can probably associate him with Pop art or a Coca-Cola bottle. His work and reputation are thoroughly entrenched in American culture, which is best explained by the fact that his work was, largely, about American culture. Patti Smith cynically notes this in Just Kids when she says, “I preferred an artist who transformed his time, not mirrored it.” And it’s true, he did reflect and repurpose what was around him. Walking through the exhibit is walking through his curated view of America: Elvis, Marilyn Monroe, Elizabeth Taylor, and Superman are all highlighted. And while he was also well known for his creative take on different subjects, like The Last Supper or Rorschach tests, it was his concentration on the people and objects of midcentury America that made him a household name.

This focus, however, sometimes landed him in legal trouble. Although some of Warhol’s work was commissioned by individuals or companies, much of it was appropriated from other artists, photographers, and brands. Two of his most famous pieces, Marilyn Diptych and the collection of Campbell’s soup cans, are examples of his habit of appropriation. For the Marilyn series, Warhol took a promotional photograph of Marilyn Monroe and transferred it onto silkscreen print using different colors. He did not own the promotional photograph that he used and he did not have permission to use it. The resulting work was transformative enough that a strong fair use argument could be made today, but Warhol’s appropriation is undeniable. Similarly, Warhol used the Campbell’s Soup logo without permission from the company for dozens of silkscreen prints. Eventually, Campbell’s Soup tacitly approved of his use because of the free marketing they were receiving, but Warhol’s use of their logo without initial permission was still appropriation.

Warhol was sued at least three times by photographers who filed copyright infringement claims against him for using their photographs in his work. Patricia Caufield sued him for using her photograph of hibiscus flowers as the subject of his Flowers series, which is part of the exhibition at The Whitney. Civil rights photographer Charles Moore sued Warhol for using photographs that Moore published in Life Magazine as the basis for his Race Riot painting. Finally, Fred Ward sued Warhol after his photograph of a grieving Jacqueline Kennedy appeared on the cover of Life Magazine and Warhol used it in one of his many prints of Jacqueline Kennedy. All three photographers settled with Warhol out of court, but Warhol vowed to use his own photographs in his work thereafter.

Nevertheless, the legal battles didn’t stop there. The Andy Warhol Foundation, to which Warhol left most of his estate after his death in 1987, has been confronted with numerous lawsuits, most of which address copyright issues of his silkscreen prints. One of the most recent lawsuits was filed in the Southern District of New York in April of 2017. Interestingly, The Warhol Foundation preemptively filed the complaint against photographer Lynn Goldsmith. Goldsmith photographed Prince in 1981 and Vanity Fair obtained a license to use one of Goldsmith’s photographs in its November 1994 issue. Vanity Fair then asked Warhol to use the photograph to create a colorful silkscreen print of Prince for its publication. After completing the piece for Vanity Fair, Warhol produced fifteen other portraits of Prince using Goldsmith’s photograph, which Goldsmith argues violates the one-time license she granted to Vanity Fair and therefore violates her copyright to the photograph. The Foundation contends that the Prince series is clearly an example of fair use and filed suit seeking declaratory judgment that the portraits in the Prince series do not infringe on Goldsmith’s copyright in the photograph. The court has yet to reach a decision in the case, but it will have important implications for artists and the fair use doctrine. It also may put a stop to the copyright claims against Warhol, who made much of his career by putting a unique twist on the work of others.

The last portion of the exhibit is an installation of celebrity portraits. Warhol would take photographs of his subjects with a Polaroid camera and then silkscreen print the image onto canvas. He referred to these commissioned pieces as his business-art, which allowed him to fund his more experimental work. The room is littered with familiar faces of actors, singers, and athletes; but, it’s equally filled with less familiar faces of bankers, socialites, and international royals. Everyone wanted to see themselves through Andy Warhol’s eyes, and he was willing to indulge them. It’s a testament to his reputation—and maybe to his greed—but most of all, to his pervasive presence in American culture, where we have allowed him to exist during his lifetime and after.