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Copyright: Court finds Andy Warhol’s use of Prince photo was fair

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

The New York federal judge in a high-profile copyright infringement lawsuit found on July 1 that painter Andy Warhol did not infringe on Lynn Goldsmith’s copyrighted photograph of Prince when he based a series of portraits on it. The court concluded that Warhol did not infringe because of the “fair use” defense.

Roots of the dispute

Goldsmith is known for taking pictures of musicians. She took photos of Prince in 1981 after a concert. She testified that he had been “uncomfortable” during the photo shoot and that is was a “vulnerable human being.”

In 1984, Goldsmith licensed one of the Prince photographs for use by Vanity Fair as a source for an artist Andy Warhol’s use in creating an “illustration of Prince” for an article. The magazine used the photograph in this way and credited both Warhol and Goldsmith for the material.

Warhol also created a series of 16 Prince pictures allegedly based on the photograph, although there is some dispute. Vanity Fair licensed one of those in the series after Prince’s untimely 2016 death for use on the cover of a commemorative magazine. This magazine only credited Warhol, but not Goldsmith.

Goldsmith sued the foundation owning the rights to Warhol’s art, since he is deceased.

Fair use

Federal copyright law identifies fair use as a valid defense to infringement. The statute lists four factors to consider in the analysis of whether the use of a copyrighted image is fair:

  • Purpose and character of use: The judge found the use of the Warhol pictures commercial, but their display in museums also adds “value to the broader public interest.” The Warhol prints are also transformative because it changes the qualities of Prince expressed in the photograph from discomfort and vulnerability to “iconic [and larger than life],” 
  • Nature of original work: The court found the photos to be creative, unpublished works, yet Goldsmith licensed the photo for Warhol’s reference, so the judge said this factor is neutral.
  • How much of original was used: Because Warhol “removed nearly all the photograph’s protectible elements,” he used little of the original. The judge said that copyright does not protect facial features and “pose and angle” of the head.
  • Effect of use on market for original work: The two works have different licensing markets.

Based on these factors, the judge found the Warhol Foundation’s interests protected by fair use.

Andy Warhol Foundation for the Visual Arts Inc., v. Goldsmith is available on Westlaw at 2019 WL 2723521. The online opinion contains images of the photograph and Warhol works at issue in the case.

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