Photographs Illustrate Sticky Issue Of Creative Licensing

Every piece of art you come across is owned by someone. That includes every piece of music, every painting, and every photographs. How much works of art are licensed is up to those who own them. Know this: creative licensing is a sticky issue that often sees the two sides in a licensing dispute wind up in court.

Such was the case following the death of pop musician Prince in 2016. A dispute arose between the Andy Warhol Foundation and a well-known photographer by the name of Lynn Goldsmith. You might already recognize Warhol’s name given that he was one of the most prolific modern artists of his day. Goldsmith is a well-known photographer whose work has adorned record album sleeves and CD covers for decades.

At issue was how Goldsmith’s early 1980s photographs of Prince could be licensed in the years after his death. One of the photographs was licensed by Vanity Fair so that Warhol could create a number of illustrated works from it, including a magazine cover. Warhol died in 1987.

  • Licensing a Licensed Work

The Warhol Foundation-Goldsmith suit resulted from the Foundation’s use of Warhol’s magazine cover to promote his works. Goldsmith contended that the photograph from which the work was produced was licensed only for that purpose. She contended that the original license allowing Warhol to create his work did not extend to allowing the Foundation to license the work for a 2016 magazine piece on Prince.

The court initially sided with the Foundation. They determined that Warhol’s work was substantially transformative to the point that his piece was completely separate from the original Goldsmith picture. An appeals court disagreed. They ruled that Warhol’s painting was essentially his rendering of a recognized photograph. The appeals court also cautioned lower courts against trying to determine just how transformative a work of art is.

The appeals court ruling followed the same principles that apply to licensing the books and screenplays that eventually become movies. Separate licenses are required at every step of the journey from manuscript to celluloid.

  • Commercial Photography Rights

The whole issue between the Warhol Foundation and Goldsmith boils down to the complicated nature of commercial photography. It is not clear whether or not Goldsmith ever intended her Prince pictures to be used commercially. But she did license them for commercial use when Vanity Fair came calling. Furthermore, every time she licenses a photograph to a musician or promotion company, she is licensing it for commercial use.

Likewise, Salt Lake City’s Vargo Photography produces a lot of commercial photography. Vargo does corporate headshots, for example. They also do brand photography as well as shooting food, consumer products, and so forth.

The question is this: does Vargo retain ownership of those photos and license them to customers, or do customers maintain ownership of the images? Either way, the images have to be licensed by the owner for any use outside of their original commission.

In the Goldsmith case, the Foundation argued that it was licensing work it owned – that being the magazine cover Warhol produced for Vanity Fair. Goldsmith countered that Warhol’s work was just her work in illustrated form. She maintained that she ultimately controlled its licensing.

  • Compensating Genuine Creativity

Creative licensing is a tricky thing at the commercial level. It all boils down to compensating genuine creativity by those who produce commercial-worthy work. No doubt this most recent ruling will be challenged by another case somewhere down the road. For now, it is clear that courts should concern themselves with standard copyright law rather than determining the transformative nature of an artist’s work.

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