Andy Warhol Prince ruling ‘unsurprising’, say lawyers
A ruling that a series of illustrations of late musician Prince by artist Andy Warhol are transformative and do not infringe a photographer’s copyright followed previous arguments made by the courts, said lawyers.
In a decision on Monday, July 1, the US District Court for the Southern District of New York granted the Andy Warhol Foundation for the Visual Arts (AWF) a declaratory judgment that Warhol’s use of a photograph taken by Lynn Goldsmith was protected as “fair use”.
The foundation has sought a judgment that works created by Warhol based on a photograph of Prince do not constitute violations of the copyright act. Goldsmith filed a counterclaim against AWF asking for a judgment in her favour.
Jason Bloom, a partner at Haynes and Boone, said the ruling was not surprising.
“Many courts put exceptional weight on the transformative nature of the use, and Warhol’s paintings based on the photograph were certainly transformative, to the extent, the judge observed that the expression the photographer sought to capture was completely different from the expression depicted in Warhol’s works,” Boone said.
He added: “Moreover, while photographs are entitled to copyright protection, that protection is not absolute, and does not extend to every aspect of the image captured.”
In December 1981, Goldsmith photographed Prince in New York City on multiple occasions.
On one occasion, Prince was “really uncomfortable” during the shoot. According to Goldsmith, the photographs from her shoot with Prince show that is not a comfortable person, and that he is a vulnerable human being.
In 1984, after obtaining a licence from Goldsmith to publish one of the portraits, US-based magazine Vanity Fair commissioned Warhol to create an illustration of Prince for an article.
Warhol created a series of full-colour illustrations, one which appeared in the magazine. The article also contained a copyright attribution credit for the portrait which read “source photograph 1984 by Lynn Goldsmith”.
AWF argued that it did not infringe Goldsmith’s copyright because none of Warhol’s Prince series works, including the work licensed to Vanity Fair, are substantially similar to Goldsmith’s portrait.
In its ruling, the court found the Prince works to be “transformative”. It said that when looking at the works side-by-side against the original portrait, Warhol’s secondary work has a “different character, a new expression and employs new aesthetics” with “creative and communicative results distinct from the original”.
It said that while Goldsmith’s photographs reflect that Prince is “not a comfortable person and that he is a vulnerable human being”, in contrast, all but one of Warhol’s works reflect the opposite.
Warhol’s Prince series contains loud, unnatural colours and his features are softened, the court said.
As a result, the alteration transforms Prince from an uncomfortable person to an “iconic, larger-than-life figure”, the court said.
“The humanity Prince embodies in Goldsmith’s photograph is gone,” the court added.
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