The Andy Warhol Foundation For The Visual Arts, Inc.v. Goldsmith

Facts

D is a professional photographer. Andy Warhol, né Andrew Warhola, was an artist particularly known for his silkscreen portraits of contemporary celebrities. P is a New York not-for-profit corporation established in 1987 after Warhol's death. P holds title to and copyright in much of Warhol's work, which it licenses to generate revenue to further its mission of advancing the visual arts, 'particularly work that is experimental, under-recognized, or challenging in nature.' D took a series of portrait photographs of Prince Rogers Nelson known through most of his career simply as 'Prince.' D arranged the lighting in a way to showcase his 'chiseled bone structure.' She applied additional makeup to Prince, including eyeshadow and lip gloss, which she testified was intended both to build a rapport with Prince and to accentuate his sensuality. D took black-and-white and color photographs using a Nikon 35-mm camera and a mixture of 85-and 105-mm lenses, which she chose to best capture the shape of Prince's face. D took 23 photographs, 12 in black and white and 11 in color. Goldsmith retained copyright in each of the photographs that she took. In 1984, D licensed one of the pictures to Vanity Fair magazine for use as an artist reference; an artist 'would create a work of art based on [the] image reference.' The license permitted Vanity Fair to publish an illustration of the photograph in its November 1984 issue, once as a full page and once as a quarter page. The license required that the illustration be accompanied by an attribution to D. Vanity Fair commissioned P to create an image of Prince for its November 1984 issue. The illustration, together with an attribution to D, was published accompanying an article about Prince. D had no idea that P was the artist for whom her work would serve as a reference. Unbeknownst to D, P created 15 additional works based on the Goldsmith Photograph, known as the 'Prince Series.' The Series comprised fourteen silkscreen prints (twelve on canvas, two on paper) and two pencil illustrations. It was P's usual practice to reproduce a photograph as a high-contrast two-tone image on acetate that, after any alterations would be used to create a silkscreen. For the canvas prints, P's general practice was to paint the background and local colors prior to the silkscreen transfer of the image. Paper prints were generally created entirely by the silkscreen process without any painted embellishments. For pencil sketches, P projected an image onto paper and created a contoured pencil drawing around the projected image. P acquired title to and copyright in the Prince Series. On April 22, 2016, the day after Prince died, Condé Nast, Vanity Fair's parent company, contacted P. After learning that P had additional images from the Prince Series, Condé Nast ultimately obtained a commercial license, to be exclusive for three months, for a different Prince Series image for the cover of the planned tribute magazine. Condé Nast published the tribute magazine in May 2016 with a Prince Series image on the cover. D was not given any credit or attribution for the image. In late July 2016, D contacted P to advise it of the perceived infringement of her copyright. That November, D registered the original Photograph with the U.S. Copyright Office as an unpublished work. On April 7, 2017, P sued D for a declaratory judgment of non-infringement or, in the alternative, fair use. D countersued for copyright infringement under §§ 106, 501. On P’s fair use claim the court concluded that the Prince Series was 'transformative' because the Prince Series portrays Prince as an 'iconic, larger-than-life figure.' If found that P in creating the Prince Series, 'removed nearly all [of] P's protectible elements.' It then held that the Prince Series works 'are not market substitutes that have harmed - or have the potential to harm - D.' D appealed.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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