A Blow to Pop Art: Andy Warhol’s Prince Series Not a 'Fair Use' of Lynn Goldsmith’s Photograph

View Lynn Goldsmith’s photograph. 

View the Prince Series.

This decision has significant implications for the legacy of Andy Warhol and The Andy Warhol Foundation for the Visual Arts (the “Warhol Foundation”), which, as Warhol’s successor, now controls his copyrights. While the court did not affirmatively rule that Warhol’s Prince Series works are infringing, this fair use finding, coupled with the court’s additional finding that Warhol’s works are “substantially similar” to the original Goldsmith Photograph, all but assure an adverse infringement decision if the case returns to the lower court for further adjudication. Since a number of Warhol works appropriated third-party photographs without a license, an adverse fair use or infringement decision risks opening the floodgates of litigation. Not surprisingly, the Warhol Foundation has obtained additional time to request a panel rehearing or en banc review of the decision. An appeal to the Supreme Court is also likely in the future, given the case’s stakes.

In the meantime, the Second Circuit’s opinion provides important clarifications for the  Copyright Act’s fair use test as applied to works of visual art. Among other things, the court acknowledged criticism of its recent fair use cases (including Cariou v. Prince, which involved Richard Prince’s unlicensed use of a photographer’s images of Rastafarians) for placing too much weight on the question of whether the new use is “transformative” at the expense of the other statutory fair use factors. The court reiterated that all four fair use factors continue to matter and should be independently considered and weighed, even if a new use is found to be transformative under factor one of that test. To determine transformativeness for works of visual art, the court stated that the key question is whether the new work can be reasonably perceived as having a new message or meaning. To make that determination, the court “must examine whether the secondary work’s use of its source material is in service of a ‘fundamentally different and new’ artistic purpose and character, such that the secondary work stands apart from the ‘raw material’ used to create it.” While the court cautioned that it could not identify all the ways in which a new work can achieve this standard, it did provide the following markers for artists and courts going forward:

1. An artist must do something more than merely apply their unique style to an unlicensed work in order to constitute a transformative use.
2. An artist’s subjective intent, even if it was to create a new artwork with a different message or meaning, is irrelevant to the question of transformativeness.
3. Likewise, a critic’s or judge’s personal assessment of the meaning, intent, or impression of a new work may not be relied on to determine if that work can be reasonably perceived as having a new message or meaning.

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