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Legal Brief, 1: Lynn Goldsmith Launches Crowdfunding Campaign to Battle Warhol Foundation

By David Schonauer   Tuesday August 8, 2017


Lynn Goldsmith is battling an unusual legal battle in an unconventional way.

In April, Goldsmith, a renowned entertainment photographer best known for her pictures of musicians, learned that she was being sued by the Andy Warhol Foundation over her portrait of the rock star Prince, which Andy Warhol turned into a series of 16 prints in 1984. The lawsuit amounted to a preemptive legal strike to stop Goldsmith from claiming that Warhol infringed on her copyright of the image.

“I’d never heard of anything like it,” Goldsmith said in a recent interview with PPD. Goldsmith filed a counterclaim against the foundation and is now preparing for a court fight with a GoFundMe crowdfunding campaign  to cover her legal costs. “I’ve had to bring in a separate law firm beside my usual lawyers, and it’s expensive to do this,” she says. The Warhol Foundation, on the other hand, has abundant resources to draw on for an extended battle.

“It’s pretty clear they want to drag this out to force me to fold,” Goldsmith says. “But I won’t. Believe me, this is not what I want to be spending my time or money doing. But I’ve just had enough of seeing photographers treated like second-class citizens. I view it as a fight for the rights of all photographers.”

In April, Goldsmith told Artnet News  that the Warhol Foundation’s lawsuit caught her off guard; she believed she and the foundation were close to a settlement. In a Facebook post she explained that she only learned of the Warhol portrait series following Prince’s death last year.


Goldsmith’s 1981 photograph of Prince


A Warhol version of the image from his “Prince” series

At issue is a photograph Goldsmith took of Prince in 1981; in its initial court filing, the foundation described the image as a “publicity photo,” though Goldsmith explains that she shot it on assignment for Newsweek. In 1984, she wrote at Facebook, Vanity Fair magazine requested or an artist reference to create an illustration, with payment as well as the credit to me as the photographer. Goldsmith gave them one-time rights to use a black-and-white version of her Prince image.

“They never said the artist was Andy Warhol,” Goldsmith wrote. The resulting Warhol image spawned the eventual series of prints, she said.

In its lawsuit, the Warhol foundation asked for a “declaratory judgment” that the works in Warhol’s Prince series do not infringe on Goldsmith’s copyright of the photograph, stating that Warhol’s portraits are “transformative or are otherwise protected fair use,” reported Artnet News. The complaint also asserted that Goldsmith’s claims are barred by the statute of limitations.

Warhol’s work as seen in Vanity Fair

“This lawsuit raises a simple question, ‘Did Andy Warhol’s signature style of celebrity portraiture transform the underlying reference works that inspired him?’” said Luke Nikas, the attorney for the Warhol Foundation. “History has definitively answered that question: Warhol is one of the most celebrated American artists of the 20th Century.”

(In April, DIY Photography  compared the images offered by the Warhol Estate as evidence with the original photo posted by Goldsmith and found striking similarities.)

How much must an artist alter a pre-existing image in order for his work to be called “transformative” and protected by fair use? The question has been raised repeatedly, most notably in photographer Patrick Cariou's copyright infringement lawsuit  against appropriation artist Richard Prince. In 2011, the Southern District of New York held that Prince had infringed on Cariou’s copyrighted photos of Jamaica’s rastafarian community in a series of paintings.  In 2013, an appeals court reversed that decision, finding that most of Prince's works were "transformative" to a "reasonable observer" and therefore fair use.

More recently, photographer Donald Graham sued Prince for using his 1996 photograph “Rastafarian Smoking a Joint" when Prince enlarged an Instagram post of it for his "New Portraits" show at New York's Gagosian Gallery in 2014. In July a Manhattan federal court judge rejected the request  of Prince and the Gagosian Gallery to dismiss the lawsuit.

“The Warhol Foundation is relying on the ‘fair use’ part of the copyright law, to try and broaden the interpretation of what is ‘transformative’ and thus never be sued,” Goldsmith writes in her GoFundMe campaign.

She views the current legal battle as a line in the sand. “I feel the issue at stake concerns whether a copyright owner's rights can be trampled on in the name of fine art,” she writes. “Where is the line drawn? If someone is very famous, can they just 'take' your work and say it is their art?”

1 Comments

  1. Sue Rynski commented on: August 9, 2017 at 5:37 p.m.
    Thank you Lynn Goldsmith, and I'm sorry you have to go through this! I'm glad that you are standing up for copyright protection, as all copyright holders should do together and individually. My interpretation of this situation is that it's a matter of ethics - your photographed was licensed for use one time only as a coauthored illustration. The coauthor in question knew all of that, and knew you are the author of the photo. The ethical thing to do (and in France for example, the legal requirement) would have been to simply ask your permission up front! Why do people neglect to do that? Yes you might want to have a licensing fee or other deal cut. You might say no. You might even say yeah it's ok with me. "famous artist" yes, and so are you - internationally recognized, then and now. Photography is fine art as well, and as long as you have not sold or transferred copyright then your photographs are not up for grabs. Yes, the legal issues need to be aired and judged. But what about basic ethics - what happened to that? Are the rich and famous and the high spheres of the art world devoid of common sense and decency?

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