Court rules against Andy Warhol Foundation in copyright infringement case

The US Second Circuit Court of Appeals in March 2021 granted celebrity photographer Lynn Goldsmith victory in a copyright infringement case against Andy Warhol Foundation (AWF). The court reversed a 2019 ruling that favoured the AWF. 

The lawsuit started in 2017 when the AWF filed a civil complaint against Goldsmith after the photographer claimed the foundation had violated the copyright of her photograph of late singer Prince. Cited from Artnet, Goldsmith first learned about the artwork in 2016 after the singer’s death was announced on social media.

In 1984, Vanity Fair licensed Goldsmith’s photograph of Prince she took in 1981 for Newsweek. The purpose of the license was for artist reference, meaning an artist commissioned by the magazine could create an illustration based on the photograph. Unbeknownst to Goldsmith, Vanity Fair commissioned Warhol to create an artwork based on her photograph.

However, aside from the commissioned artwork, Warhol went on to make another 15 different artworks for his personal brand using the same image and the same license. The license obtained by Vanity Fair only covers permission for the illustration to be published in the magazine. At the time of publication, the magazine did cite Goldsmith next to the image and credited her as a source for the photograph elsewhere in the issue.

Based on the court document, the AWF acquired title to and copyright of the Prince Series after Warhol’s death. Between 1993 and 2004, AWF sold 12 artworks from the original Prince Series to third parties. In 1998, they gave custody of the other four works to The Andy Warhol Museum. The AWF retains copyright for the Prince Series images and continues to license the images for editorial, commercial and museum purposes through The Artist Rights Society (a third-party organisation that serves as AWF’s agent).

The AWF made a swift move to seal and file for a fair use license so that the Prince Series could be immune to accusations of copyright infringement. Goldsmith countersued and accused Warhol of copyright infringement on the premise of him creating artworks using copyrighted material. The foundation argued that Andy Warhol had made a derivative work as the artwork ‘manifested a uniquely Warhol aesthetic.’

The AWF in 2019 was awarded with a summary judgement and a license for fair use for the Prince Series. The court concluded that the Prince Series was a transformative artwork as Goldsmith’ photograph portrays Prince as ‘not a comfortable person’ and a ‘vulnerable human being,’ while the Prince Series portrays Prince as an ‘iconic, larger-than-life figure.’ The court also declared that Warhol had removed all possible ‘copyrightable’ elements of Goldsmith’s photograph.

However, Goldsmith filed a follow-up lawsuit in August 2020, claiming that her reasons substantiate her accusation of copyright infringement. Goldsmith argued that the licensing Goldsmith’s photograph had does not change its status as an unpublished work nor diminish the law’s protection of Goldsmith’s choice of ‘when to make a work public and whether to withhold a work to shore up demand.’

With that, the court came into a different conclusion. They found that the Prince Series ‘borrows significantly’ from Goldsmith’s photograph, both ‘quantitatively and qualitatively.’ A comparison of images in the Prince Series showcases that Warhol did not use Goldsmith’s photograph only as a reference, but instead, Warhol’s images are recognised as variations or interpretations of Goldsmith’s photograph itself.

The Warhol vs Goldsmith case is a noble example of how versatile copyright can be and how artists may be at the mercy of a law that isn’t necessarily inclusive.