The issue dates to 2017, when the Warhol Foundation sued rock photographer Lynn Goldsmith. She had notified the Foundation about a copyright issue because Warhol used a photo of Prince she took in the ’80s to create a series of silkscreens.
The Foundation claimed the Warhol Prince images were fair use. Goldsmith countersued but saw her case dismissed in federal court.
On Friday, the 2nd Circuit Court of Appeals decided to reverse the lower court. “We conclude that the district court erred in its assessment and application of the fair-use factors and that the works in question do not qualify as fair use as a matter of law.” The ruling added, “We likewise conclude that [Warhol’s Prince works] are substantially similar to the Goldsmith Photograph as a matter of law.”
Copyright owners of original works also own the rights to derivative works. Now Goldsmith’s case against the Warhol Foundation can once again move forward. .
Goldsmith photographed Prince at her studio in 1981. During the session, which a pre-stardom Prince nervously left before completing, Goldsmith took 23 photographs, 12 in black and white and 11 in color.
In 1984, Goldsmith’s agency licensed one of the images to Vanity Fair, intending it to be used as an “artist reference.” Goldsmith was not aware that Warhol was the artist in question. Beyond the Vanity Fair-commissioned image, Warhol allegedly created 15 additional works, which became known as the Prince Series. Warhol died in 1987.
The Warhol image ran in Vanity Fair with a credit to Goldsmith. She alleges that she only became aware of the other images after Prince’s death in 2016, when the magazine again ran the image, this time with no Goldsmith credit. Instead, the Foundation was credited.
Court documents claim the Warhol Foundation sold or “otherwise transferred custody” of 12 of the Prince Series to third parties and the Andy Warhol Museum, and continues to license the images.