Case On Point
In this month's case, the court considers whether Andy Warhol exceeded the limits of an artist's reference license.
The Andy Warhol Foundation for The Visual Arts, Inc. v. Lynn Goldsmith
(U.S. Ct. of App. for the 2d Cir. 2021)
Lynn Goldsmith is a successful professional photographer known especially for her portraits of rock musicians and other celebrities. In 1981, she was assigned by Newsweek to photograph Prince but retained the copyright to the photographs. Goldsmith applied make-up and adjusted the lighting to emphasize the singer's chiseled features and sensuality.
Three years later, Goldsmith licensed one of the photos to Vanity Fair magazine for use as an artist's reference. The license permitted the magazine to use the photo as the basis for an illustration to appear in the November, 1984 issue, and required it to give credit to Goldsmith.
Vanity Fair then commissioned Andy Warhol to create the illustration, which appeared in the magazine, together with the required attribution.
Unbeknownst to Goldsmith, Warhol went on to create a series of 15 silk screened prints and two pencil drawings based on the licensed photo. In 2016, after Prince's death, Vanity Fair licensed one of the other Warhol works to use for the cover of a tribute issue. It was published with no attribution to Goldsmith.
When Goldsmith saw the magazine cover, she contacted the Andy Warhol Foundation, which now owned the copyright. The Foundation sued seeking a declaratory judgment that there was no infringement, or, in the alternative, that the fair use defense applied. The district court granted summary judgment to the Foundation, agreeing that Andy Warhol's use of the photo beyond the scope of the license was "transformative" and that such use did not reduce market demand for Goldsmith's work.
The Court of Appeals reversed. While in most instances "transformative works" copied from the original for purposes of commenting on them, the Warhol print served the same purpose as the Goldsmith photo and was readily recognizable as being derived from Goldsmith's photo. The Court also noted that the Warhol prints could reduce the demand for licenses to Goldsmith's photos.