‘Judges can’t play art critic’, warns 2nd Circ over Prince image
A US federal appeals court has ruled that Andy Warhol’s “Prince Series”, featuring modified images of the late pop star, infringed a photographer’s copyright and did not qualify as fair use.
The decision, from the US Court of Appeals for the Second Circuit, is a win for Lynn Goldsmith, who licensed her original 1981 photo of Prince to Vanity Fair. Unbeknownst to Goldsmith, the magazine took the licence for a commissioned work by Warhol, who went on to create another 15 images in the “Prince Series”.
Goldsmith told the court that she had only become aware of Warhol’s series after seeing a tribute to Prince after the musician’s death in 2016. She subsequently sued the Andy Warhol Foundation for the Visual Arts for copyright infringement, claiming the later 15 images violated her rights for the original 1981 photograph.
The first victory in the case went to the Foundation, which won a declaration of non-infringement at the US District Court for the Southern District of New York in July 2019. According to the New York court, Warhol’s series qualified as fair use because it was “transformative”—namely, because it succeeded in portraying Prince as an “iconic, larger-than-life” figure, compared to the “vulnerable human being” depicted in Goldsmith’s photograph.
But on Friday, the Second Circuit criticised the district court’s reasoning, warning that interpretive judgments about art didn’t fall within the brief of judges.
“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—or for that matter, a judge—draws from the work,” wrote Justice Gerard Lynch.
“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective,” Lynch added.
According to the appeals court, Warhol’s embellishment of Goldsmith’s photograph with “loud, unnatural colours” did not meet the legal standard of being transformative and, therefore, fair use.
The Second Circuit judges also “felt compelled to clarify” that it did not matter, from a legal point of view, whether the “Prince Series” was immediately identifiable as “a Warhol”.
“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,” Lynch wrote.
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