Tianchu Gao is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.
On March 26, 2021, the 2nd Circuit Court of Appeals in New York found that the famed artist Andy Warhol violated photographer Lynn Goldsmith’s copyright by using her photo of the singer Prince to create his “Prince Series.” The series was originally commissioned by Vanity Fair after it bought the license of the photo portrait from Goldsmith. Goldsmith said she was not aware of Warhol’s work until Tribute magazine featured the image, without crediting her, when Prince passed away in 2016.
The legal question at the center of the dispute is whether Warhol’s series is fair use of Goldsmith’s original photograph. A permissible derivative creation, or fair use, requires transformative changes made to the original. The trial judge John G. Koeltl found that Warhol’s works were fair because they transformed a “vulnerable, uncomfortable person” in Goldsmith’s original photograph into “an iconic, larger-than-life figure.” Judge Gerald Lynch overturned this analysis in the appellate court, claiming that Warhol’s changes—including shallower depth, brighter hues, and larger size—were mere visual flourishes. “It does not follow…that any secondary work that adds a new aesthetic or new expression to its source material is necessarily transformative,” said Lynch.
This is not the first time Andy Warhol was sued for IP infringement. In fact, nearly all creations by Andy Warhol are derivatives of existing images—celebrity photos, advertisements, magazine illustrations, etc.—to the extent where one could argue that the essence of Warhol’s art is appropriation. As a pioneer of pop art, Warhol was one of the first artists to appropriate low-brow commercial imagery to challenge the notion of art as the products of geniuses’ inspirations. Following Warhol’s footsteps, artists in the pop art movement, as a form of cultural critique, deliberately mimicked machines and performed mechanic labor in their creations. In this sense, the originality of Andy Warhol’s art largely lies in the concept of appropriation, rather than any aesthetic quality. Yet, this conceptual innovation is not part of the legal test for the transformative nature of visual art.
The appellate court’s decision partly considered Goldsmith’s weakened ability to license and profit from her work used by the Warhol series. As one of the world’s most commercially successful artists, Andy Warhol had amassed tremendous fortune by making simple and repetitive changes to existing images created by other less-known artists. A great imbalance in power and wealth exists between the two parties in this case. On the other hand, Warhol’s great commercial success was the choice of the market. After all, Vanity Fair commissioned an Andy Warhol print, his signature silkscreen, instead of a creative portrait of Prince.
The Warhol Foundation plans to appeal the ruling, according to an Artnet News report. The implication of the result will be far-reaching. If Goldsmith wins, the Warhol Foundation will probably face floods of litigations after years of diligent copying and printing by Warhol. The decision may even change the practice of many contemporary artists.