[author: Charlie Nelson Keever]

In dueling motions for summary judgment over copyright infringement claims, The Warhol Foundation butts heads with a photographer whose photo was a source for Warhol’s “Prince Series.”

Lynn Goldsmith is a self-described “rock and roll photographer” who has been photographing music legends since the early 1970s. The photograph in question was from a 1981 shoot she did for Newsweek with the late pop star Prince. Goldsmith says she licensed the photo to Vanity Fair for a one-time use as an artist reference for an illustration, and that’s how the photograph ended up in the hands of Pop Art pioneer Andy Warhol. Warhol used the photo as the basis for one of his iconic celebrity portraits, producing 12 paintings, two drawings, and two unpublished prints (the “Prince Series”).

In April 2017, Warhol’s estate sued Goldsmith, asking the court for a declaration that the use of the photo in the Prince Series does not violate Goldsmith’s copyright because Warhol’s works were “entirely new creations.”  Goldsmith responded a few months later, filing a counterclaim for copyright infringement.

Now, the District Court for the Southern District of New York must decide whether Warhol’s use of the photograph infringes upon Goldsmith’s copyright.

The Warhol Foundation argues that the Prince Series doesn’t count as an infringing derivative work because it does not contain any of the protectable elements of Goldsmith’s photograph. “Warhol’s signature silk-screen technique (and, in some cases, freehand drawings) deliberately stripped away every protectable element of the underlying photograph… the result… is that the only commonality remaining between Warhol’s Prince Series and [Goldsmith’s] photograph is the rough outline of Prince’s face – which cannot be copyrighted as a matter of law.”

Furthermore, even if Warhol’s Prince Series does contain derivative works, The Warhol Foundation says that Warhol made fair use of Goldsmith’s photo by “transforming” not only the photograph itself, but also the message it conveys. Among other artistic choices, Warhol: “deliberately cropped Prince’s head so that it appears disembodied… stripped away the range of tones and texture… painted many of the works with multiple layers of bright and exotic acrylic paints; and superimposed a floating, freehand sketch of the outline of Prince’s head. Warhol transformed the message as well, the Foundation argues, creating an image of Prince “as an icon, not a person,” to comment on the impact of “celebrity and contemporary conditions of life.” The Second Circuit, the Foundation points out, has recognized this very quality in Warhol’s art, noting that “[m]uch of Andy Warhol’s work, including work incorporating appropriated images … comments on consumer culture and explores the relationship between celebrity culture and advertising.” Cariou v. Prince

Finally, the Foundation argues that Warhol’s art market is distinct from Goldsmith’s. While Warhols go for hundreds of thousands of dollars at the finest art galleries and auction houses, Goldsmith typically sells her photographs for low single-digit thousands, primarily through galleries that focus on rock-and-roll photographs and memorabilia.

For her part, Goldsmith cautions that this case may have catastrophic consequences for photographers. She argues a holding that Warhol’s “superficial revisions” constitute transformative use would “give a free pass to appropriation artists and destroy derivative licensing markets for commercial photographers whose works are used without permission.”

It’s worth noting that, in a landmark decision where the California Supreme Court applied the copyright fair use “transformative use test” as the First Amendment test for protected speech in the right of publicity context, the Court specifically pointed to Andy Warhol’s celebrity portraits as a paragon of what should be deemed a transformative use of a celebrity’s image: “Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.” Comedy III Productions, Inc. v. Saderup, Inc., et al. 

Goldsmith points out that things have changed since Warhol’s time: “In today’s digital world, anyone can easily modify a photograph on a computer to add high contrast, coloration and artifacts.” Warhol, she argues, “did little more than that.”

The Southern District of New York will decide if it agrees

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