Before Andy Warhol Set His Eyes on Marilyn and Prince, There Was Gilbert Stuart and George Washington

Gilbert Stuart and Andy Warhol were of different eras and used different media to capture the stars of their day. The former painted portraits of the ruling elite in the young United States. The latter made colorful art of pop culture’s biggest celebrities. But both had a similar issue: becoming embroiled in copyright disputes.

Last year, the United States Supreme Court heard a case that touched on this intricate series of protections, specifically regarding Andy Warhol’s use of photographer Lynn Goldsmith’s portrait of Prince. While the pop artist licensed her photo to make several silk-screen images, his foundation did not when it allowed a magazine to reproduce one of the images years later, after Prince’s death. The court ruled that even though “Orange Prince adds new expression to Goldsmith’s photograph,” both images were created for similar commercial purposes, and thus Goldsmith was entitled to compensation and copyright protection.

Stuart’s story requires a longer journey, back to April 11, 1796, when he received a letter from President George Washington. He was the pre-eminent U.S. portrait artist of his day. Born in the colony of Rhode Island, he traveled in 1775 to London, where he studied with prominent artist and fellow American Benjamin West. Returning to the newly formed United States in 1793, he brought with him his established artistic talent, wit, intolerance for criticism and, above all, his need for financial success. He had left behind him numerous creditors in England and Ireland.

Stuart landed in New York and produced portraits of such notables as Aaron Burr and John Jay, the nation’s first chief justice. Jay later provided a letter of introduction to Washington, which Stuart took with him in late 1795 to the country’s then capital, Philadelphia. He also received a second recommendation from Anne Bingham, the wife of Senator William Bingham. Together, they were one of the wealthiest couples in the U.S.

The correspondence from Washington read:

Sir,

I am under promise to Mrs. Bingham to set for you tomorrow at nine o’clock and wishing to know if it be convenient to you that I should do so and whether it shall be at your own house, (as she talked of the State House) I send this note to you, to ask information—

I am Sir, Your Obedient Servt

G. Washington

The president’s letter was crucial to Stuart’s quest for financial solvency through producing and selling portraits of famous Americans at a profit, and no American was more famous than Washington. Stuart’s business plan, however, required maintaining control over what we would now call his intellectual property. He had mixed success in that arena. And there lies his connection with Andy Warhol and Prince.

That year, Stuart painted several Washington portraits. One was a commission by the first lady, Martha Washington, for Stuart to produce paintings of her and her husband. The result was two unfinished portraits. He never delivered them to the Washingtons. Instead, he held onto them as a source of income through the production and sale of copies. He made and sold more than 75 copies, each for $100, which led the artist to refer to them as his “100-dollar bills.” The Boston Athenaeum acquired them after Stuart’s death, so they have become known as the Athenaeum works. The unfinished works are currently on display at the Smithsonian’s National Portrait Gallery.

Another Washington portrait came on the recommendation of the aforementioned “Mrs. Bingham.” Stuart hoped, too, that the sale of engraved copies of this work would rescue him “from pecuniary embarrassment,” and “provide for a numerous family at the close of an anxious life.” In short, he still needed money.

This painting, which also hangs in the National Portrait Gallery, would become known as the Lansdowne portrait, named for William Petty, first Marquess of Lansdowne, British prime minister at the end of the Revolutionary War and an admirer of Washington. The Binghams gave Petty the portrait as a gift.

Stuart believed that a verbal agreement struck with Senator Bingham would allow the artist to receive the profit from the sale of any copies made from engravings. Bingham disagreed, but without a written agreement, Stuart had no legal basis to challenge the senator’s action.

Petty subsequently arranged for an English artist to make the engravings, and no share of the proceeds from ubiquitous copies went to Stuart. He had lost control of how his artistic creation could be used to others’ profit. U.S. copyright law likely would not have helped, because the engraving was made in England. The result on Stuart’s finances was dire.

Given his experience with Bingham, Stuart defended the use of his Athenaeum portraits vigorously. His experience with a ship captain and merchant named John E. Sword is a notable example. Sword purchased one of Stuart’s Athenaeum replicas, verbally agreeing not to make copies. He promptly took it to China, where he commissioned over a hundred copies to be made on glass. Sword intended to sell them in the United States. The resulting copies were clearly reproductions of Stuart’s work. But being reverse painted on glass gave them a different aesthetic quality.

When Stuart learned of Sword’s actions, he promptly sued him in federal court. The 1802 decision in Stuart v. Sword ruled in favor of Stuart; Sword was in breach of contract. Sword had created copies of the Athenaeum portrait with a different quality of light but with the same commercial purpose as Stuart: to sell them for a profit.

Echoes of that ruling can be heard in the 2023 Supreme Court case involving the Warhol Foundation.

Over 220 years of complex developments in U.S. copyright law separate the two cases. Sword lost his case on a finding of contract violation. He might have claimed that the reverse glass paintings of Washington were “fair use,” as had the Warhol Foundation regarding Orange Prince. But that legal concept had not yet been created in 1802. Still, these cases are examples that show the complicated intersection of the artistic world with the commercial. Undoubtedly, there will be more to come, and with their own surprising echoes.

Michael Hussey | READ MORE

Michael Hussey, Ph.D., is the director of history, restorative history and research at the Smithsonian’s National Portrait Gallery. He has authored numerous publications on topics ranging from the Revolutionary War service of enslaved men to contemporary presidential policies.