On March 26th, 2021, the Second Circuit (i.e., the Court of Appeals for federal courts located in New York and surrounding areas) ruled that a series of Andy Warhol’s prints created from photographs of “Prince” infringed upon the copyright of the author of the original pictures (i.e., the photographer). In doing so, the Second Circuit overturned a lower court ruling that Warhol’s prints constituted “fair use” of the photographs and were sufficiently “transformative.”
In this critical Second Circuit decision, the Court of Appeals found that the lower court placed too much emphasis on its “subjective interpretation” of the work. In the lower court’s opinion, Warhol created “an iconic, larger-than-life figure” out of what was previously a “vulnerable, uncomfortable person.” The Second Circuit emphasized that “whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic … draws from the work.”
Judge Gerald Lynch of the Second Circuit held that Warhol’s prints retained the “essential elements” of the original photographs. The Court ruled that Warhol had not created something “fundamentally different and new,” despite adding his own “signature style.” The Second Circuit found that the lower court extended the fair use doctrine beyond its limits, further holding that asserting “a ‘higher or different artistic use’ is insufficient to render the work transformative.”
An attorney with the Warhol Foundation stated that the Foundation would appeal the decision. The photographer, Lynn Goldsmith, stated that she took on this legal battle to protect “the rights of all photographers and visual artists to make a living by licensing their creative work – and also to decide when, how and even whether to exploit their creative works or license others to do so.”
Author’s Note:
In my opinion, the Second Circuit reached the correct result. The ‘fair use” doctrine has been expanded to defeat legitimate copyright claims far too often.
The Warhol Foundation is represented by Luke W. Nikas, Kathryn Bonacorsi, Daniel Rickert Koffmann, Ryan Adam Rakower, and Maaren A. Shah of Quinn Emanuel Urquhart & Sullivan LLP.
Lynn Goldsmith is represented by Thomas G. Hentoff, Lisa Schiavo Blatt, and Katherine Moran Meeks of Williams & Connolly LLP.
The Andy Warhol Foundation v. Goldsmith case is case number 19-2420, in the U.S. Court of Appeal for the Second Circuit.
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