2nd Circuit Flays Fair-Use Defense to Warhol Prince Prints

The reversal breathes new life into copyright claims over Andy Warhol screen prints of Prince that shook up one photographer’s 1981 portrait of the beloved singer.

Screenshot from a Second Circuit opinion shows three images from Andy Warhol’s Prince series. (Image via Courthouse News)

MANHATTAN (CN) — Andy Warhol’s 1984 series of silkscreen prints and pencil illustrations of the iconic singer Prince “are not fair use as a matter of law,” the Second Circuit ruled Friday, reviving a rock photographer’s copyright claims.

In a 56-page opinion, a three-judge panel of the Manhattan-based U.S. Court of Appeals was unanimous that the Prince prints do not qualify as transformative works of art under the fair-use doctrine.

Warhol created the first piece of his 16-part Prince series in 1984 when Condé Nast licensed Lynn Goldsmith’s black-and-white photo as an illustration reference for an article titled “Purple Fame” that appeared with attribution in the November issue of Vanity Fair.

Goldsmith, a New York City rock photographer and former manager of the 1970s Michigan hard-rock powerhouse Grand Funk Railroad, had shot her portraits of a then-up and coming Prince, for Newsweek three years earlier, 10 months before the release of his breakthrough record 1999.”

“There can be no reasonable debate that the works are substantially similar,” Friday’s lead opinion by U.S. Circuit Judge Gerard Lynch states.

“Prince, like other celebrity performing and creative artists, was much photographed,” the ruling continues. “But any reasonable viewer with access to a range of such photographs including the Goldsmith Photograph would have no difficulty identifying the latter as the source material for Warhol’s Prince Series.”

Another factor weighing in the photographer’s favor, according to the ruling, is consideration of how the Warhol series affected the potential market for or value of her copyrighted portrait.

“Thus, although the primary market for the Goldsmith Photograph and the Prince Series may differ, the Prince Series works pose cognizable harm to Goldsmith’s market to license the Goldsmith Photograph to publications for editorial purposes and to other artists to create derivative works based on the Goldsmith Photograph and similar work,” the opinion states.

The Obama-appointed Lynch was joined on the panel by Senior U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush nominee, and U.S. Circuit Judge Richard Sullivan, a Trump appointee, who each wrote separate concurring opinions. The panel heard oral arguments in September 2020.

U.S. Circuit Judge Jacobs noted in his 3-page opinion that the majority opinion rests heavily on the commercial competition between Goldsmith’s photograph and the reproduced versions of the Prince series.

“It may well compete for magazine covers, posters, coffee mugs, and other media featuring the late musician,” he wrote. “If the Foundation had refuted the evidence of such market displacement, the weight of the analytical considerations would have changed.”

The Andy Warhol Foundation was founded in 1987 after the iconic Pop artist’s death. Its attorney, Luke Nikas with Quinn Emanuel, balked at Friday’s reversal.

“Over fifty years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th Century,” Nikas said. “While the Warhol Foundation strongly disagrees with the Second Circuit’s ruling, it does not change this fact, nor does it change the impact of Andy Warhol’s work on history.

“The Foundation will continue to promote the ideals of artistic creativity and freedom of expression that are embodied in Warhol’s work, and will challenge the Second Circuit’s decision to ensure that these ideals remain protected.”

After Warhol’s first foray with Goldsmith’s Prince photo — an orange-hued print that ran in Vanity Fair — the artist went on to make another 15 separate and distinct silkscreen prints.

Between 1993 and 2004, the foundation sold or otherwise transferred custody of 12 of the original Prince series works to third parties, and, in 1998, transferred custody of the remaining our works to The Andy Warhol Museum in Pittsburgh.

Following the singer’s 2016 death at age 57, Vanity Fair ran the Warhol print again on the cover of a commemorative issue titled “The Genius of Prince.” Anticipating a copyright suit by Goldsmith, the Andy Warhol Foundation for the Visual Arts filed suit in April 2017.

The foundation had prevailed at summary judgment in 2019 with U.S. District Judge John Koeltl ruling that Warhol’s prints made Prince an “iconic, larger-than-life figure,” transforming the vulnerable and uncomfortable man depicted in the original photo.

Goldsmith applauded the appellate court for reversing that finding.

“Four years ago, the Andy Warhol Foundation sued me to obtain a ruling that it could use my photograph without asking my permission or paying me anything for my work,” the photographer said in a statement Friday. “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.”

According to Goldsmith’s GoFundMe fundraising page, she has already spent $400,000 in out-of-pocket costs in her fight with the Warhol foundation. 

Goldsmith, who is currently based in Nashville, is seeking to raise $2 million in donations and to protect intellectual property copyrights for visual artists from a broader interpretation what constitutes fair use. 

“I know copyright law is not a glamorous or sexy but it is IMPORTANT to pay attention to if you are a visual artist — especially a photographer!,” she wrote in February. “I knew and adored Andy — he would never have done this — he settled with all photographers who discovered he’d taken their work without permission — he didn’t go sue them for their own photo trying to scare them to give up rights due to costs of lawyers and courts.”

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