July 2019: Victory for The Andy Warhol Foundation for the Visual Arts, Inc.
The firm recently achieved a complete victory for The Andy Warhol Foundation for the Visual Arts, Inc., obtaining a ruling from the district court that Andy Warhol’s series of celebrity portraits of Prince is protected by fair use.
Warhol regularly used source images, such as photographs of celebrities like Marilyn Monroe, as part of his artistic process. Even though Warhol transformed the underlying source material in his art, it has been the subject of accusations of copyright infringement.
In 2017, the Foundation was threatened with suit by rock-and-roll photographer Lynn Goldsmith. She had taken photographs of Prince in 1981, and later licensed one of the photographs to Vanity Fair for use as an “artist reference.” Andy Warhol used Goldsmith’s photograph as a reference for sixteen famous portraits of Prince. Vanity Fair published one of Warhol’s portraits in its November 1984 issue, accompanying an article about Prince’s rising fame entitled “Purple Fame.”
After Prince died in 2015, Condé Nast published a commemorative magazine celebrating the musician’s life and work. It obtained a license from the Foundation to publish one of Warhol’s Prince works on the cover of the magazine. Goldsmith then threatened to sue the Foundation for copyright infringement. The Foundation sued Goldsmith first in the U.S. District Court for the Southern District of New York, seeking declaratory judgments that, among other things, Warhol’s Prince works made fair use of Goldsmith’s photograph. Goldsmith counterclaimed for copyright infringement.
The parties engaged in discovery and filed summary judgment motions on their respective claims. After oral argument, the district court ruled in favor of the Foundation, granting its motion for summary judgment and dismissing Goldsmith’s counterclaim. The court held that Warhol’s sixteen Prince works are transformative—the most important of the statutory factors considered by courts in determining whether the “fair use” defense applies. The court explained that Warhol’s alterations to the source material “result in an aesthetic and character different from the original.” The court further recognized that Warhol’s Prince works “add something new to the world of art and the public would be deprived of this contribution if the works could not be distributed.”
The importance of this ruling to Warhol’s legacy cannot be overstated: finding that Warhol’s Prince works are transformative protects against further claims of infringement and preserves Warhol’s legal reputation as one of the most influential artists of the 20th century.