Movement in Andy Warhol Appropriation Art Case: NY Court to Weigh in on Fair Use Debate

Last week, we saw some movement in the high-profile lawsuit between the Andy Warhol Foundation and photographer, Lynn Goldsmith, regarding Warhol’s iconic Prince portrait series produced in 1984. Both parties have made their pleas and filed cross-motions for summary judgment which could lead to a decision from the court clarifying the boundaries of fair use in copyright law.

In 1984, Goldsmith gave Vanity Fair a license for a one time use of her photo of the musical artist, Prince, as source material for an illustration by Warhol. Warhol created the illustration as well as 15 other portraits of Prince. In 2016, shortly after Prince’s death, the foundation licensed one of those portraits to Conde Nast for the cover of a magazine. It was around this time that Goldsmith learned of the Warhol series after seeing the images posted online.

Last year, the Andy Warhol foundation filed a pre-emptive lawsuit against Goldsmith in order to squash her claims that Warhol’s Prince portrait series is a violation of her exclusive rights under copyright law. The Foundation claims that there is no evidence of copying as it is unclear which photo Warhol was inspired by; but more importantly they claim that the series is an exercise of the fair use doctrine due to the work’s transformative nature and the fact it does not usurp Goldsmith’s market. Goldsmith, on the other hand, claims that the essence of her photograph is still present in the portrait series and that there is an overlap in the markets for the work.

The decision from the court as to whether Warhol’s portraits constitute fair use will help clarify the boundaries of the doctrine as it relates to appropriation art. This is especially important after a controversial 2013 decision from the 2nd Circuit which was widely seen as expanding the doctrine and led other circuits to question whether the test for transformative use was too broad.

For more details about the Warhol case, please click here.
A copy of the complaint filed by the Warhol Foundation can be found here.

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