Legal Brief: Appeals Court Sides with Photographer Lynn Goldsmith In Battle Over Warhol Art

By David Schonauer   Monday March 29, 2021

A federal appeals court has dealt a major victory to photographer Lynn Goldsmith in her long-running copyright dispute with the Andy Warhol Foundation over a series of Warhol works of art based on one of her pictures of Prince.

The New York-based 2nd U.S. Circuit Court of Appeals ruled that the artwork created by Warhol before his 1987 death was not transformative and could not overcome copyright obligations to photographer Lynn Goldsmith, notes ABC News.

The decision effectively overturns one made in 2019 by the Southern District Court of New York, which ruled in favor of the Warhol Foundation, adds Art News. The case will now return to a lower court.

In a statement, Goldsmith said she was grateful for the decision. The Warhol Foundation, she said, wanted to “use my photograph without asking my permission or paying me anything for my work.”

"I fought this suit to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work — and also to decide when, how, and even whether to exploit their creative works or license others to do so,” added Goldsmith, who, as we noted in 2019, established a GoFundMe campaign to help finance her legal battle.

The focus of dispute concerns Warhol’s 1984 “Prince Series,” 16 artworks based on a 1981 picture of Prince that was taken by Goldsmith, a noted celebrity photographer, on assignment for Newsweek. In 1984, Goldsmith licensed her Prince portrait to Vanity Fair, which then commissioned Warhol to make an artwork based on it. The artist didn’t stop with the image for Vanity Fair, but went on to create 15 other silkscreen paintings, screen prints and drawings based on Goldsmith’s photo, notes UPI.

Goldsmith said she first became aware of the additional artworks after Prince's death in 2016, when Condé Nast published a tribute magazine featuring Warhol’s image without including any credit for her original photograph. She then notified the Andy Warhol Foundation for the Visual Arts, which manages the late pop artist's estate, of the alleged copyright infringement.

Andy Warhol's Prince illustration based on Goldsmith’s photograph as it appeared in Vanity Fair. It was reproduced in court documents, noted Artnet News in 2019.

The foundation then sued for a declaratory judgment that the artworks didn't violate copyright, and Goldsmith countersued. The lawsuit focused on whether Warhol’s works were sufficiently “transformative” to be considered a fair use of Goldsmith’s original photo. Warhol “had altered Goldsmith’s aesthetic in such a way that his images have shallower depth and brighter hues as compared to the original portrait,” noted Art News.

In 2019, U.S. District Judge John G. Koeltl concluded that Warhol had indeed transformed a picture of a vulnerable and uncomfortable Prince into an artwork that made the singer an “iconic, larger-than-life figure,” notes ABC News. But in his decision for the appeals court, Judge Gerald Lynch wrote that Warhol’s versions Goldsmith’s image could not be considered “transformative” because of these visual changes.

“The Prince Series retains the essential elements of its source material, and Warhol’s modifications serve chiefly to magnify some elements of that material and minimize others,” Lynch wrote. “While the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.”

Luke Nikas, a lawyer representing the Andy Warhol Foundation, told  Art News that there are plans to challenge the appeals court decision. “Over 50 years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th Century,” he said. “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.”


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