The 2nd Circuit Court of Appeals in New York has ruled that a portrait of Prince by the Pop artist Andy Warhol did not make ‘fair use’ of the original Lynn Goldsmith 1981 photograph from which it had been based.
Warhol went on to create 15 more works as part of the series
The decision overturns a verdict from 2019 by the Southern District Court of New York, which ruled in favour of the Andy Warhol Foundation for the 1984 series filed in 2017. Warhol’s 1984 “Prince Series” was taken while on assignment for Newsweek. In 1984, Lynn Goldsmith licensed the portrait to Vanity Fair, which then commissioned Warhol to make an artwork based on it.
Warhol went on to create 15 more works as part of the series. Goldsmith claimed not to have been aware of the series until 2016 when Prince died and Condé Nast published a tribute magazine featuring Warhol’s image without any credit to Goldsmith.
Goldsmith is a well-known Rock/celebrity photographer. The foundation stated that “Warhol’s works were entirely new creations.” In US law, appropriation or the use of someone else’s image in an artwork is allowed, so long as it isn’t exploited for commercial use. In the case of Shepard Fairey, who licensed artwork of the Obama Hope poster to Urban Outfitters, the artist was in breach of copyright as the image belonged to a well known AP photographer. The case of Richard Prince and the appropriated Instagram images was a no brainer in the US courts as Prince used other people’s images to create original works of art. On the other hand, artist Jeff Koons recently lost a similar case in France for using another photographer’s image in a sculpture from his Banal series.
In a pre-emptive measure, the pop artist’s estate sued to avoid being sued itself, according to a suit filed in a Federal court on Friday. The estate claims it is protecting his legacy from her claim that he copied her photo of Prince.
The Warhol Foundation now intends to appeal this latest decision.
Court Doc Warhol Prince vs Lynn Goldsmith
In 1984, Warhol painted a series of portraits of Prince court papers point out he “drew inspiration from and transformed a publicity photograph” of the artist in circulation at the time some thirty years ago. The series is transformative and protected by fair use, and that any potential copyright claims are barred by the statute of limitations and the doctrine of laches.
“Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol’s works were entirely new creations,” writes attorney Luke Nikas in the complaint. “As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”
As one example, which is demonstrated visually in the complaint, Nikas argues that Warhol’s Prince is wearing “substantially heavier” eye makeup than the artist is in the photo.
The estate argues, Lynn Goldsmith has known about the series since at least 1984 because she granted a license to Vanity Fair to use one of the Warhol images on its cover. According to the complaint, though, the photographer has claimed she didn’t learn about her work’s pop art adaptations until Conde Nast published a special issue called The Genius of Prince in 2016 and used the image as its cover.
“Despite knowing that Warhol’s portraits are a protected fair use, Defendants have attempted to extort a settlement from the Foundation,” states Nikas, who also cites Goldsmith’s own Facebook post as proof she was aware. In Jan. 2015, she wrote, “It is a crime that so many ‘artists’ can get away with taking photographers images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place.”
Top Image: ‘Prince’ By Andy Warhol based on a photo by Lynn Goldsmith