Will Warhol’s Prince Portrait be Protected Under the Fair Use Doctrine?

Photographer Lynn Goldsmith brings a copyright infringement issue regarding visual arts to light. She further alleges that her 1981 photograph of the pop star Prince was unjustly used to make a screen print (the “Prince Series”). She says her portrait got into the hands of Andy Warhol because she licensed the photo to Vanity Fair for a one-time use. Additionally, she says it was never a “publicity photo.”

Surprisingly enough, Goldsmith was not the one to file the initial suit. In April 2017, Warhol’s Estate unexpectedly sued Lynn Goldsmith “asking the court for a declaration that his 1984 paintings of Prince don’t violate her copyright in the photo from which they originated because, although the artist often used photographs as inspiration, his works were ‘entirely new creations.’” The Warhol Foundation argues the Prince Series does not contain protect-able elements of Goldsmith’s photo. The Foundation admits the only similarity between both photographs is the rough outline of Prince’s face, “which cannot be copyrighted as a matter of law.” However, even if the Prince Series was found as copyrighted, The Foundation says Warhol made fair use of the 1981 portrait by “transforming” photo and message. Lastly, the Foundation points out that Warhol’s art market is different from Goldsmith’s.

Following the suit, Lynn Goldsmith filed a counterclaim for copyright infringement a few months later. She said, “ I believe artists have to stand up for their rights,” and sees the case as “The Big Guys’ picking on ‘The Little Guys.” The District Court for the Southern District of New York is left to decide whether Goldsmith is right. Specifically, the court must now consider whether Warhol’s iconic colorized images are protected from copyright claims by the fair use doctrine.








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