On July 1, 2019, U.S. District Court Judge of the Southern District of New York, John G. Koeltl, held that an Andy Warhol series of prints featuring legendary pop artist, Prince, does not infringe upon the copyright of the photographer who originally took the photograph.

Judge Koeltl ruled that the Warhol series is “transformative” of the original photo and “adds something new to the world of art.” Judge Koeltl added,

“Warhol’s 16-piece ‘Prince Series’ passes the fair use test [“fair use” is a doctrine in the law that permits limited use of copyrighted material in the interests of the public without having to first acquire permission from the copyright holder] because the public would be deprived of Warhol’s contribution if it couldn’t be distributed.”

Background

Lynn Goldsmith (“Goldsmith”) took the now-famous photo of Prince during a shoot in December 1981 for Newsweek Magazine. Newsweek ultimately didn’t use the photos, but in 1984, Variety licensed one of the Prince photos to use with one of its articles. Goldsmith said she wasn’t aware of that deal — conducted by her photography agency — at the time.

Vanity Fair then commissioned Warhol to create an illustration of Prince for an article headlined “Purple Fame.” He ended up creating his series of 16 distinct images inspired by Goldsmith’s photo. One of those appeared in Vanity Fair’s November 1984 issue.

The lawsuit, which was brought by photographer Goldsmith against the Andy Warhol Foundation (“Foundation”) two years ago, faced an early motion for summary judgment brought by the Foundation seeking a ruling that none of the 16 works in the “Prince Series” infringed Goldsmith’s copyrights.

Judge Koeltl explained, “Goldsmith argued throughout the case that her original photo was ‘intended to reveal how uncomfortable Prince was as a person,’ whereas Warhol’s series ‘reflects the opposite’…Warhol changed the framing of the photo, added ‘loud, unnatural colors’ and even altered the image in a few of his pieces to the point ‘Prince’s expression is almost entirely lost from the original,” in justifying his ruling.

“The ‘Prince Series’ works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure…Warhol’s famous representations of Marilyn Monroe and Mao, pieces of art are ‘recognizable as ‘Warhols,” not as realistic photographs of those persons…although Warhol initially used Prince’s head and neckline as they appear in Goldsmith’s photo, he ‘removed nearly all the photograph’s protectable elements in creating the ‘Prince Series.’”

Further, according to Judge Koeltl, “The evidence shows that the ‘Prince Series’ works are not market substitutes that have harmed — or have the potential to harm — Goldsmith.”

Goldsmith has already indicated her intention to appeal the ruling to the Second Circuit Court of Appeals.

The Andy Warhol Foundation is represented by Luke Nikas, Maaren A. Shah and Daniel Koffmann of Quinn Emanuel Urquhart & Sullivan LLP.

Goldsmith is represented by Barry Werbin of Herrick Feinstein LLP and Joel Hecker of the Law Offices of Joel L. Hecker.

The case is The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al., case number 1:17-cv-02532, in the U.S. District Court for the Southern District of New York.

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