Warhol Foundation Seeks to Pre-Empt Copyright Claims

MANHATTAN (CN) — The Andy Warhol Foundation for the Visual Arts sued a photographer in Federal Court to try to pre-empt Lynn Goldsmith’s copyright claims in a 1984 series of Warhol prints of the late musician Prince.

In its April 7 lawsuit, the Warhol Foundation seeks declarations of non-infringement and fair use. The Foundation calls called Goldsmith’s infringement claims a “shake down” and part of a “campaign to profit from Prince Rogers Nelson’s tragic death.”

It says that Goldsmith’s “meritless copyright claims” against the Prince series prints are time-barred by the Copyright Act’s 3-year statute of limitations.

It also cites aesthetic differences between the Warhol print series and Goldsmith’s publicity photo, including heavier eye makeup in the Warhol prints and the way the Prince Series portrays Prince’s hair as a solid block of color, whereas his strands of hair are plainly visible in Goldsmith’s original.

The Foundation defends Warhol’s immediately recognizable brand of appropriation portraiture: “Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol’s works were entirely new creations.”

Goldsmith intends to bring counterclaims against the Foundation for copyright infringement, writing on her personal website: “The issue of copyright infringement will, despite Warhol’s pre-emptive attempt to silence me, be decided by the court if the matter is not resolved.”

Goldsmith dismissed the Foundation’s claims on her Facebook page, writing: “Where they said I was trying to ‘extort’ them, the amount of money we were discussing in negotiations of a settlement was extremely modest. In fact, Warhol’s legal fees to bring this suit probably already exceed what the parties would have been agreed to in a settlement!”

According to the Foundation’s lawsuit, Goldsmith contacted it in July 2016, three months after Prince’s death, seeking a “substantial sum of money” for infringing on her copyright on the 1981 Prince publicity photograph.

Warhol Foundation attorney Luke Nikas, with Boies Schiller & Flexner, said in the complaint that Goldsmith should have known of the statute of limitations in 1984, when Vanity Fair published one of the Warhol prints, or should have known with reasonable diligence by the early 1990s, when the series had been widely exhibited in museums, published in books, and sold in public auctions.

Goldsmith’s failure to timely raise copyright issues “has prejudiced the Foundation’s ability to defend itself,” according to the complaint.
Goldsmith said she was unaware of the similarities between Warhol’s 1984 series of prints and her 1981 publicity photo until after Prince’s death in April 2016, when she saw images of the prints on Instagram.

She says she knew the photo had been licensed to Vanity Fair by a photo agent for use as a reference drawing but did not know that Warhol the artist was involved. Goldsmith said that in 1983 and 1984, she was busy promoting her synth-pop album “Dancing For Mental Health”, released in 1983 by Island Records under her stage name Will Powers.

The Andy Warhol Foundation for the Visual Arts was founded in 1987 after Warhol’s death. In 1994, the Warhol Foundation took ownership of the copyrights and trademarks that were in Warhol’s possession at the time of his death, which included ownership of the Prince prints series.

Lynn Goldsmith’s prolific portrait photography began in the early 1970s with her portraits in albums by Grand Funk Railroad and Alice Cooper and later included covers for Bob Marley, Tom Petty, Eddie Murphy and Frank Zappa.

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