MANHATTAN (CN) — A photographer’s copyright suit over Andy Warhol’s 1984 Prince series appeared to hit the rocks Tuesday at the Second Circuit where one of the judges invoked another of Warhol’s Pop art prints.
“The Campbell’s soup can — the Campbell’s soup people are not intending create a work of art, they’re intending to have an attractive trademark to get people to buy their soup, and Warhol is making a work of art,” Senior U.S. Circuit Judge Gerard Lynch asked Warhol’s attorney Tuesday morning.
“That’s a different thing,” Lynch continued. “Here, you’ve got one kind of portrait of Prince, and you’ve got a different kind of portrait of Prince.”
New York photographer Lynn Goldsmith shot what Lynch would termed the first Prince portrait in 1981. Warhol created the second three years later when Condé Nast licensed Goldsmith’s black-and-white photo as an illustration reference for an article titled “Purple Fame” that appeared in the November issue of Vanity Fair.
Warhol not only created the orange-hued print of Goldsmith’s Prince photo for Vanity Fair, however, but 15 other separate and distinct silkscreen prints.
Following 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 was founded in 1987 after Warhol’s death.
Goldsmith appealed to the Second Circuit after U.S. District Judge John Koeltl ruled against her last year, finding that Warhol’s print made the singer an “iconic, larger-than-life figure,” transforming the vulnerable and uncomfortable man depicted in the original photo.
“Even a world-famous artist is not entitled to write himself a permission slip to create derivative works without a license,” Goldsmith’s lawyer wrote in an appellate brief.
The foundation meanwhile has labeled Goldsmith’s infringement claims a “shake down,” part of a “campaign to profit from Prince Rogers Nelson’s tragic death.”
Tuesday’s hearing before the Second Circuit was conducted remotely, as is the standard for most court proceedings during the coronavirus pandemic.
“You do not look at Prince as a protectable element of Goldsmith’s photograph,” Quinn Emanuel attorney Lukas Nikas argued this morning for the foundation. “The outline of his head and his face are not owed to Goldsmith. She didn’t create them.
“You look at the lighting, the shading, the contrast, the overall depth of field and the pose itself, the unique pose if there is one, and you balance those elements and you decide whether those elements find their way into the Warhol, not whether the Warhol looks like Prince and so does Goldsmith’s, because you do not have, as a photographer, a copyright in the outline.
“When you look carefully, just as the District Court did, at the Warhol,” he concluded. “You will not see the same lighting. You will not see the same shading. You will not see the same color. You will not see the same color balance. You will not see the same contrast.”
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.
Goldsmith’s prolific portfolio of photography of musicians began in the early 1970s with her portraits in albums by Grand Funk Railroad and Alice Cooper and later included covers for Patti Smith, Tom Petty, Eddie Murphy and Frank Zappa.
Her attorney said Tuesday that most of her earnings come from licensing her photographs.
“If the District Court ruling stands, that a really creative and a really distinctive secondary artist can forgo getting permission for a derivative use, then people like Lynn Goldsmith who make their living by creating visual and other arts are at the mercy of artists who want to be creative in a derivative way,” said Goldsmith’s attorney Thomas Hentoff.
“People like Lynn Goldsmith make their living from licensing their works and it opens it up to be a free buffet for someone that might be distinctive or famous,” he said of the fair-use ruling.
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 hope to define what is transformative under the fair use aspect of the copyright law so that no one else has to endure what I’ve had to, so that heirs to work can benefit from what was left to them, and so that future creators who copyright their work will never have to battle for their rights against deep pocketed artists, businesses, or foundations,” Goldsmith wrote in a fundraising update.
The Robert Rauschenberg Foundation submitted an amicus brief in support of the Warhol Foundation’s fair-use claims, arguing that the right to build on another artist’s work is essential to the progress of artistic innovation.
“A contrary view of fair use would stifle artistic progress. If Goldsmith is right, and works of visual art must be transmuted into something else entirely (i.e., something other than a work of visual art) to qualify for fair-use protection, the world would be deprived of countless artworks that were forged from earlier works,” the Robert Rauschenberg Foundation wrote. “And future generations of artists would be foreclosed from innovating based on the works of others, as artists have done for centuries.”
Rauschenberg was an American painter and graphic artist whose early works anticipated the 1960s Pop art movement that produced Warhol’s best-known works.
The three-judge panel reserved their decision on the appeal Tuesday.