Warhol’s works are protected by fair use because they are “transformative” of the original photo and “add something new to the world of art” Andy Warhol Prints
Today’s Art Newspaper’s article about Andy Warhol prints in the context of photography by other persons should be taken seriously. The whole issue on copyright regarding art and photography is becoming more and more obsolete.
Dismissing Goldsmith’s copyright infringement claim, Judge John G. Koeltl ruled that Warhol’s works are protected by fair use because they are “transformative” of the original photo and “add something new to the world of art”, according to the court papers.
For the record, especially for my Japanese readers, I am posting the complete text.
Compare also the statement by Eikoh Hosoe regarding Mishima’s photographs.
三島由紀夫のホモエロティシズム写真作品 © 細江英公
MISHIMA Yukio’s homoerotic photoworks © Eikoh Hosoe
Or see also
リチャード・プリンス と著作権の問題：「元ソニック・ユースのキム・ゴードン」作 @ Blum & Poe 東京
Richard Prince and copyright issues: ‘ex Sonic Youth Kim Gordon’ @ Blum & Poe, Tokyo
Warhol’s Prince series ruled fair use by a New York judge in contested copyright case
The ruling settles a heated two-year legal battle between the artist’s foundation and photographer Lynn Goldsmith, who shot the original image in 1981
A portrait of Prince by Andy Warhol.
A New York federal judge ruled yesterday that a well-known Andy Warhol series, in which the artist modified a photograph of the pop music icon Prince, does not infringe the copyright of the photographer who took the original image.
The decision marks the end of a heated and potentially influential lawsuit brought in 2017 by the celebrity photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts after she claimed that Warhol violated the copyright of her photographs of Prince, taken in 1981, when they were used to make the artist’s screenprints.
Dismissing Goldsmith’s copyright infringement claim, Judge John G. Koeltl ruled that Warhol’s works are protected by fair use because they are “transformative” of the original photo and “add something new to the world of art”, according to the court papers. The 16-piece Prince Series, made by Warhol in 1984 for Vanity Fair, also does not present “market substitutes for her photograph”.
“We’re pleased that the court recognised Warhol’s invaluable contribution to the arts and upheld these works,” says Luke Nikas of the law firm Quinn Emanuel, which represents the Warhol Foundation.
Goldsmith granted Vanity Fair a one-time license to use her photograph of Prince as source material for Warhol’s illustration in 1984. In 2016, the Foundation licenced one of those portraits to Condé Nast for $10,000 for the cover of a magazine dedicated to Prince published shortly after the musician’s death. Goldsmith says she learned of Warhol’s series from online images posted after Prince died, though the portraits—a dozen of which were sold—have been exhibited in museums, including four in the Andy Warhol Museum.
When the lawsuit was filed two years ago, it immediately sparked debate about what constituted artistic appropriation versus copyright infringement. Goldsmith claimed that the Foundation violated her exclusive rights under copyright law to reproduce, display, licence and distribute works derived from her photograph. A ruling in its favour “would give a free pass to appropriation artists” and destroy licensing markets for commercial photographers, according to the initial court filings. The Warhol Foundation entreated the Manhattan federal court to “stay on the right side of history” and “reject” what it called Goldsmith’s “effort to trample on the First Amendment and stifle artistic creativity”.
In addition to declaratory judgment, the foundation is seeking retribution in the form of money, including the cost of the suit and attorneys’ fees. Monday’s ruling states that a “holistic weighing” of fair use factors “points decidedly in favour” of the foundation, which must submit proposed judgement by 8 July; Goldsmith must submit any objections by 10 July.
Andy Warhol’s Prince Portraits Are ‘Fair Use’ of Lynn Goldsmith Photo, Federal Judge Rules
BY Annie Armstrong POSTED 07/02/19 2:03 PM
The fight largely centered on whether Warhol had sufficiently transformed the original photograph so as to quality as fair use. Weighing aspects of the world like color and shading, the judge wrote that the Warhol “works are transformative, and therefore the import of their (limited) commercial nature is diluted.” (Goldsmith had argued that Warhol had improperly benefited from his use of the photograph.)
The opinion lays out several differences between Goldsmith’s portrait and Warhol’s iterations. “These alterations result in an aesthetic and character different from the original,” the judge wrote, adding, “The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each ‘Prince Series’ work is immediately recognizable as a ‘Warhol’ rather than a photograph of Prince.”
Luke Nikas, a lawyer from the Warhol Foundation, told ARTnews this morning over email, “Warhol is one of the most important artists of the 20th century, and we’re pleased that the court recognized his invaluable contribution to the arts and upheld these works.”
Judge: Andy Warhol didn’t violate Prince picture copyright
By LARRY NEUMEISTER
July 2, 2019
“The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” the judge said. “The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons.”
Art and Law
The Andy Warhol Foundation Has Won Out Against a Photographer Who Claimed the Pop Artist Pilfered Her Portrait of Prince
Photographer Lynn Goldsmith has vowed to appeal.
Sarah Cascone, July 2, 2019
Goldsmith claims to have spent $400,000 in legal bills to date, and expects to accrue costs in excess of $2.5 million. To help offset her legal costs, she’s taken out a loan and launched a GoFundMe campaign that has raised $17,000 to date.