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Analysis of Warhol Art Fair Use Ruling
The U.S. District Court for the Southern District of New York, in a ruling during the summer by District Judge John J. Koetl, held that a series of silkscreen paintings and prints by Andy Warhol based on a photograph of music legend Prince taken by Lynn Goldsmith constituted a transformative fair use. The Andy Warhol Foundation for the Visual Arts v. Goldsmith, 382 F.Supp. 3d 312 (S.D.N.Y.). In so holding, Judge Koetl relied on the 2013 Second Circuit decision holding that an "appropriation artist," Richard Prince (no relation to the musician Prince), made a transformative and fair use of photographs taken by Patrick Cariou. Cariou v Prince, 714 F.3d 694 (2d Cir. 2013). Cariou has been criticized for its characterization of the changes made by Richard Prince as transformative, a criticism that Lynn Goldsmith no doubt will be making in her pending appeal of Judge Koetl's decision.
Goldsmith has long been recognized as a leading photographer of rock, jazz and r&b performers. In 1981, she took a number of studio photographs of musician Prince on assignment from Newsweek Magazine. In 1984, Goldsmith licensed Vanity Fair Magazine to use one of those photographs in an article for an artist's reference. Goldsmith's photography agency submitted the Goldsmith photograph to Vanity Fair, a Condé Nast publication, which in turn commissioned Andy Warhol to create an illustration of Prince for an article entitled "Purple Fame" that appeared in the November 1984 issue. Warhol used the photograph in creating a series of 16 works, comprised of 12 silkscreen paintings, two screen prints on paper, and two drawings (the Prince Series works). One of the Prince Series works appeared in the "Purple Fame" article, described as "a special portrait for Vanity Fair by ANDY WARHOL," along with a copyright reference as follows: "source photograph © 1984 by Lynn Goldsmith/LGI." After Warhol died in 1987, ownership of the Prince Series works passed from Warhol's etate to the Andy Warhol Foundation for the Visual Arts (AWF). The Prince Series works have since been published widely and displayed in museums and other public places on numerous occasions pursuant to licenses from AWF.
Upon Prince's death in April 2016, Vanity Fair published an online version of the "Purple Fame" article, including Warhol's illustration of Prince crediting both Warhol and Goldsmith for the illustration. Soon thereafter, Condé Nast issued a commemorative magazine, The Genius of Prince, using as its cover illustration another one of the Prince Series works (the Condé Nast Warhol Prince illustration), pursuant to a license from AWF, this time with a copyright credit to Warhol but not to Goldsmith. Goldsmith claimed that she first became aware of Warhol's use of her photograph in creating the Prince Series works upon seeing the Condé Nast Warhol Prince Illustration in 2016. Soon thereafter, Goldsmith notified Condé Nast of her infringement claim and obtained a copyright registration for her photograph.
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