Photographer Lynn Goldsmith has won an appeal over a copyright dispute over how Andy Warhol had used a photograph that she'd taken of Prince. The 2nd US Circuit Court of Appeals has officially ruled that Warhol's Prince Series (which used Goldsmith's image as reference) wasn't transformative, which therefore means that it violates Goldsmith's copyright.
The 2nd Circuit Judge Gerard E. Lynch has said, "crucially, the Prince Series retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements".
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As reported by PetaPixel, Vanity Fair licensed one of Lynn Goldsmith's images of Prince for $400 in 1984. Andy Warhol used this image to create an illustration of Prince for an article in Vanity Fair called "Purple Fame". However, Vanity Fair didn't inform Goldsmith that this photo would be used in this way and she didn't see the article when it was published.
In fact, Goldsmith only discovered that her photograph had been used as a reference for Warhol's illustration in 2016, after seeing a commemorative magazine for Prince from Condé Nast that had licensed one of Warhol's artworks. It turned out that Andy Warhol hadn't only used Goldsmith's photograph as a reference for the Vanity Fair illustration, he'd also created 15 additional artworks as well.
Goldsmith informed the Andy Warhol Foundation (AWF) that Warhol's artwork had infringed on her copyright in late July 2016, kicking off four years of legal battles.
The AWF initially filed a "preemptive strike" in April 2017 against Goldsmith before she had a chance to file a copyright infringement lawsuit. Goldsmith countersued, but the initial verdict ruled in favor of the AWF's claim that Warhol's paintings fell under 'fair use'.
The US District Judge John G. Koetl said that Warhol's paintings had transformed Goldsmith's original image. "The humanity Prince embodies in Goldsmith's photograph is gone. Moreover, each Prince series work is immediately recognizable as a 'Warhol' rather than as a photograph or Prince."
However, Goldsmith went on the appeal the ruling – and has been successful. The appeals court stated that they, "feel compelled to clarify that it is entirely irrelevant to this analysis that 'each Prince Series work is immediately recognizable as a Warhol'. Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist's style, the greater leeway that artist would have to pilfer the creative labors of others."
Barry Werbin, the attorney who represented Goldsmith in the lower court, said that this ruling was "a long overdue reeling in of what had become an overly-expansive application of copyright 'transformative' fair use. The decision helps vindicate the rights of photographers who risk having their works misappropriated for commercial use by famous artists under the guise of fair use."
Meanwhile, Goldsmith herself told AP that she was grateful for the ruling, saying that the foundation wanted to use her photo without "asking my permission or paying me anything for my work. I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work — and also to decide when, how, and even whether to exploit their creative works or license others to do so."
Goldsmith's fight isn't over just yet, as the AWF has already said that it will challenge this ruling. However, if this decision stands then it will be interesting to see how it will affect other copyright legal battles for photographers in the future.