Photographer Lynn Goldsmith wins appeal against Warhol Foundation

 By Emmanuel Legrand

The Second Circuit Court of Appeals in New York has overturned a 2019 ruling in favour of the Andy Warhol Foundation (AWF) about a series of works from Warhol using a photo from photographer Lynn Goldsmith​. 

  The initial ruling ​concluded that Warhol's creations were transformative in that the final works were significantly different from the picture they were based on. The appeals court ruled instead that the series of works known as the 'Prince Series' by Warhol ​"retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements,” ​according to the decision from Judge Gerard E. Lynch.  

  In 1984, Goldsmith, through her licensing arm LGL, licensed to Vanity Fair magazine ​a picture she had taken of Prince during a 1981 session. In turn the magazine asked Warhol to create an image based on the Golsdmith picture. Unbeknownst to Goldsmith and LGL, Warhol created 15 additional works based on the photo.

The photo as the foundation of the work

  Following the death of Prince, Vanity Fair secured more visuals from the Foundation and the works came to the attention of Goldsmith, who then warned the AWF that she believed it was an infringement of her copyright.

  In 1917, AWF sued Goldsmith and LGL for a declaratory judgment of non-infringement or, in the alternative, fair use. Goldsmith countersued for copyright infringement​. In the 2019 ruling, the court held that ​​"the Prince Series works are transformative works​.​”

  ​In contrast,​ Judge Lynch wrote that "while the cumulative effect [of Warhol's] alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognisable foundation upon which the Prince Series is built." 

Celebrity-plagiarist privilege

  The Judge also addressed the point that “each Prince Series work is immediately recognisable as a ‘Warhol'.” He wrote: "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.​"

  ​Added Judge Lynch: "The question we must answer is simply whether the law permits Warhol to claim it as his own, and AWF to exploit it, without Goldsmith’s permission. And, at least as far as this aspect of the first factor is concerned, we conclude that the answer to that question is 'no'.”​

  Attorney Luke Nikas, acting on behalf of the AWF, commented: “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. 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.” Nikas said the Foundation will challenge the ruling.  

 A vindication of the rights of photographers

  “Apart from being ecstatic as to the result, in my view it’s a long overdue reeling in of what had become an overly-expansive application of copyright 'transformative' fair use,” said Attorney Barry Werbin on behalf of Goldsmith. 

  “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."

  The case is now remanded back to the District Court for further proceedings.