Wade Eaton, BridgeTower Media Newswires
That’s the question before the federal courts in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith and Lynn Goldsmith, Ltd.
On Dec. 3, 1981, Lynn Goldsmith, a photographer specializing in celebrity portraits of rock, jazz, and R&B performers, photographed Prince Rogers Nelson, best known as “Prince.” In October 1984, Vanity Fair licensed one of her black-and-white studio portraits of Prince for publication in an upcoming article. By then, Prince’s career had taken off.
Unbeknownst to Goldsmith, Vanity Fair had commissioned Andy Warhol to create a full-color illustration of Prince for its November 1984 issue. The article stated that it featured “a special portrait for Vanity Fair by ANDY WARHOL.” The article contained a copyright attribution credit for the portrait as follows: “source photograph © 1984 by Lynn Goldsmith/LGI.” Based on the Goldsmith photograph, Warhol also created the “Prince Series,” comprised of sixteen distinct works, including the one used in the Vanity Fair magazine. Following Warhol’s death in 1987, these works became the property of The Andy Warhol Foundation for the Visual Arts, Inc. (“the Foundation”).
Some 35 years later, following Prince’s death in 2016, Condé Nast issued a commemorative magazine entitled “The Genius of Prince.” It obtained a commercial license from the Foundation to use one of Warhol’s Prince Series works as the magazine’s cover. The magazine contained a copyright credit to Warhol but not to Goldsmith.
Goldsmith had not learned that Warhol had created the Prince illustration for Vanity Fair until she became aware of the Conde Nast publication. She immediately notified the Foundation that Warhol had violated her copyright protections. In response, the Foundation filed an action in the Southern District of New York seeking a judgment upholding Warhol’s right to use her photograph as the basis of his work.
Once the court determined that the Warhol work was indeed based on the Goldsmith photograph, it reviewed the provisions of the “fair use doctrine,” which provides an exception to the copyright protections. The suggested criteria for determining whether the fair use exception applies were: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.
The court focused on the first element, primarily the character of the subsequent work. The court noted that the primary question is whether the work is of a “transformative” nature. The court ruled that the secondary work is transformative as a matter of law when it has a different character, a new expression, and employs new aesthetics with creative and communicative results distinct from the original.
The court noted that the Goldsmith photograph portrayed Prince as “an uncomfortable person, a vulnerable human being.” The court held the Warhol rendition could “reasonably be perceived to have transformed Prince to an iconic, larger-than-life figure.” The Warhol piece was indeed “transformative” and constituted a fair use of the Goldsmith photograph. [The court’s decision is reported at 382 F.Supp.3d 312.]
Goldsmith’s appeal to the Second Circuit drew widespread interest. Some 20 amici, ranging from law professors to various art museums, filed extensive briefs supporting either Goldsmith or the Foundation.
The court’s review of the district court’s ruling focused on whether the Warhol work was “transformative,” as defined by the Supreme Court: “a secondary work which adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
Based on this standard, the court found that the district court’s determination that the Warhol works were transformative was in error. It found that its decision was grounded on “a subjective evaluation of the underlying artistic message of the works rather than an objective assessment of their purpose and character.” As an aside, it noted that the district judge should not have “assumed the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.” That is so, it asserted, “because judges are typically unsuited to make aesthetic judgments…”
The court saw the Warhol piece as serving only to magnify some elements of the photograph and to minimize others; the Goldsmith photograph remained the recognizable foundation upon which the Prince Series was built.
The court determined that the Warhol piece was not transformative and did not qualify as fair use of Goldsmith’s 1981 photograph. [The Court’s decision is reported at 11 F.4th 26.]
The Foundation filed a Petition for Certiorari, which the Supreme Court has granted. The Foundation’s brief was due on June 10.
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Wade Eaton served as an assistant attorney general and is a former partner at Chamberlain D’Amanda in Rochester.
