A photographer who claimed that Andy Warhol infringed her photo of Prince from 1981 has won a huge victory from the 2nd Circuit Court of Appeals.
In the mid-1980s, Lynn Goldsmith licensed her Prince image to Vanity Fair. They in turn commissioned Warhol to create a silkscreen. Warhol went on to create 15 more works for a Prince series, which Goldsmith didn’t even know about until Prince’s death in 2016.
Following Goldsmith’s complaints citing copyright infringement, the Andy Warhol Foundation sought a declaration of fair use from the court, which they obtained in a summary judgment. However, today, 2nd Circuit Judge Gerald Lynch reversed that ruling with a majority opinion that states that Warhol’s artwork does not constitute fair use. He found that Warhol’s image was substantially similar to the photographer’s and the case has been sent back to the district court. A trial that focuses on damages may now proceed.
The opinion is based on copyright precedent such as that a new creative work does not have to comment on the original to be considered fair use. However, Lynch points out that when considering if there is new meaning or expression being added, a work such as a film adaptation of an original novel isn’t given protection just because it has added a new element. He goes on to say that the secondary work must be perceived as having a distinct artistic purpose separate from the source material. It was then noted that works within this category have drawn from various sources, rather than just altering or recasting a single work “with a new aesthetic.”
Looking at Goldsmith’s original photograph and Warhol’s creation, the judge determined that the purpose and function of both are identical, not just because they were created as visual art, but because they are portraits of the same individual. While the 2nd Circuit court agreed with a lower judge that the two artists don’t have the same market (one is a photographer and the other is in fine arts), the majority opinion differed from the conclusion of the district court that Warhol’s Prince Series would pose “no threat to Goldsmith’s licensing markets.”