By Canadian Press

US court sides with photographer in fight over Warhol art

Mar 26, 2021 | 10:22 AM

NEW YORK — A U.S. appeals court sided with a photographer Friday in her copyright dispute over how a foundation has marketed a series of Andy Warhol works of art based on 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 obligations to photographer Lynn Goldsmith’s copyright protections. It returned the case to a lower court for further proceedings.

Warhol created a series of 16 artworks based on a 1981 picture of Prince that was taken by Goldsmith, a pioneering photographer known for portraits of famous musicians. The series contained 12 silkscreen paintings, two screen prints on paper and two drawings.

“Crucially, the Prince Series retains the essential elements of the Goldsmith Photograph without significantly adding to or altering those elements,” the 2nd Circuit said in a decision written by Judge Gerard E. Lynch.

The decision overturned a 2019 ruling by a Manhattan judge who concluded that Warhol’s renderings were so different from Goldsmith’s photograph that they transcended Goldsmith’s copyrights.

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U.S. District Judge John G. Koeltl in Manhattan had concluded that Warhol transformed a picture of a vulnerable and uncomfortable Prince into an artwork that made the singer an “iconic, larger-than-life figure.”

In 1984, Vanity Fair licensed one of Goldsmith’s black-and-white studio portraits of Prince from her December 1981 shoot for $400 and commissioned Warhol to create an illustration of Prince for an article titled “Purple Fame.”

The dispute emerged after Prince’s 2016 death, when the Andy Warhol Foundation for the Visual Arts licensed the use of Warhol’s Prince series for use in a magazine commemorating Prince’s life. One of Warhol’s creations was on the cover of the May 2016 magazine.

Goldsmith claimed that the publication of the Warhol artwork destroyed a high-profile licensing opportunity.

Attorney Luke Nikas said the Warhol Foundation will challenge the ruling.

“Over fifty years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th Century,” Nikas said in a statement. “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.”

Attorney Barry Werbin said Goldsmith, his client, was “beyond happy and very grateful to everyone who helped get to this day.”

“Apart from being ecstatic as to the result, in my view it’s a long overdue reeling in of what had become an overly-expansive application of copyright “transformative” fair use,” Werbin said in an email.

“The decision helps vindicate the rights of photographers who risk having their works misappropriated for commercial use by famous artists under the guise of fair use,” he added.

The three-judge 2nd Circuit panel said it hoped its ruling would bring more clarity to copyright law. It repeatedly compared the copyright issues to what occurs when books are made into movies. The movie, it noted, is often quite different from the book but yet retains copyright obligations.

The appeals court also said the unique nature of Warhol’s art should have no bearing on whether the artwork is sufficiently transformative to be deemed “fair use” of a copyright, a legal term that would free an artist from paying licensing fees for the raw material it was based on.

“We feel compelled to clarify that it is entirely irrelevant to this analysis that “each Prince Series work is immediately recognizable as a ‘Warhol,’” the appeals court said. “Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labours of others.”

Larry Neumeister, The Associated Press