Andy Warhol’s Prince Paintings Didn’t Rip Off Photographer, Federal Judge Rules

The rights of the photographer who inspired Warhol’s paintings have not been infringed, court declares

Last Updated: July 2, 2019 @ 1:06 PM

A New York federal judge ruled Monday that Andy Warhol’s series of paintings do not infringe the copyright of the photographer whose image inspired the painting.

The decision puts an end to an arduous and potentially groundbreaking lawsuit brought by the celebrity photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts in 2017. The lawsuit claimed that Warhol violated the copyright of her photographs of Prince, taken in 1981, which were used to make the artist’s screen prints three years later.

New York Judge John G. Koeltl dismissed Goldsmith’s copyright infringement claim, ruling that Warhol’s works are protected by “fair use” because they are “transformative” of the original photo and “add something new to the world of art,” according to the 35-page ruling.

“The evidence shows that the Prince Series works are not market substitutes that have harmed — or have the potential to harm — Goldsmith,” the judge said in the decision, adding that Goldsmith’s arguments are “either moot or without merit.”

The 16-piece “Prince Series,” made by Warhol in 1984 for Vanity Fair, also does not present “market substitutes for her photograph.”

“Andy Warhol is one of the most important artists of the 20th century,” said Luke Nikas of the law firm Quinn Emanuel, which represents the Warhol Foundation. “We’re pleased that the court recognized Warhol’s invaluable contribution to the arts and upheld these works.”

In the past, Goldsmith had allowed the Prince photo to be reused. In 1984, she granted Vanity Fair a one-time license to use her photograph of Prince as source material for Warhol’s illustration. In 2016, the Warhol Foundation licensed one of those portraits to Vanity Fair parent company Condé Nast for $10,000 for the cover of a magazine dedicated to Prince published shortly after the musician’s death. Goldsmith says she learned of Warhol’s series from online images posted after Prince died, though the portraits — a dozen of which were sold — have been exhibited in museums, including four in the Andy Warhol Museum.

The legal drama over the paintings sparked debate about over artist appropriation versus copyright infringement. Goldsmith claimed that the Prince Series copied the photograph and contains derivative work and that the works are not transformative or otherwise protected fair use. The lawsuit added that Goldsmith and her company would “threatened to file litigation if they are not paid a substantial amount of money.” However, the foundation’s suit asserted that that Warhol’s portraits made significant changes from the photo they were based on.

Goldsmith’s lawyer says she plans to appeal the decision.

“Obviously we and our client are disappointed with the fair use finding, which continues the gradual erosion of photographers’  rights in favor of famous artists who affix their names to what would otherwise be a derivative work of the photographer and claim fair use by making cosmetic changes,” said attorney Barry Werbin of Herrick, Feinstein LLP. “The District Court was of course constrained by the Second Circuit’s prior controversial decision in Cariou v. Prince, which stretched ‘transformative’ fair use to new boundaries that we believe were not contemplated by Congress or the Supreme Court in its 1994 Campbell decision, where “transformative” was mentioned for the first time in caselaw in the context of a music parody.”

Werbin added “we are hopeful that an appeal to the Second Circuit will be successful and pull in the reigns of transformative use where photography is concerned.”

Pamela Chelin contributed to this report.

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