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Big ‘fair use’ win for US photographers!

A US appeals court has ruled that Andy Warhol’s silkscreen prints of musician, Prince, which were created using an image by photographer, Lynn Goldsmith, is copyright infringement.

Two of the 16 screen prints by Andy Warhol, shown in the original lawsuit.

It’s a rare copyright win for US photographers. Especially considering the Andy Warhol Foundation (AWF) failed to argue Fair Use, an exception to copyright infringement frequently used (and abused) against photographers.

Warhol was a pioneer of pop art, and would routinely appropriate work by others. He was a trailblazer for art appropriation and his ethos, ‘art is what you can get away with’, is what artists like Richard Prince, who made a lucrative career from shamelessly stealing photos, live by.

The case involving Goldsmith and the AWF first appeared in 2017. Here’s what Inside Imaging reported at the time:

Goldsmith’s Prince portrait was taken in 1981 while working on assignment for Newsweek. In 1984, Vanity Fair asked to use the photo ‘for an artist reference to create an illustration’ with payment and credit, but didn’t mention the artist was Warhol.
It wasn’t until Prince died last year, and images of him began flooding social media, that she first discovered Warhol’s 16 screenprints which resemble her photo, she says. The prints had been auctioned and sold, which overreached the licensing agreement with Vanity Fair.
The Warhol foundation accepts there’s some resemblance between the prints and the photo (more than they’d care to admit).

Rather than allowing Goldsmith to take legal action, the AWF pre-emptively sued the photographer to prove Warhol’s work was Fair Use, which is determined by factors such as whether the work is transformative.

According to AWF’s lawsuit, the prints are different because:
1. Warhol’s silkscreen printing technique flattens the appearance of a subject’s face by removing gradual shading;
2. By focussing on the subject’s face, whereas the photo is centred on the body and extends below the waist;
3. Each print shows Prince with unnatural looking facial colours, whereas the photo shows Prince as he appears;
4. All but one print use a single colour for the subjects hair, lips, and facial features, whereas the photo show many natural colours;
5. Prince’s hair is shown as a solid block, whereas the photo shows strands of hair.

There is more, but that’s the gist of it.

This photo by Goldsmith was used as inspiration by Warhol for 16 screen prints. Source: Artnet.

Goldsmith countersued and lost the case in July, 2019, with the AWF successfully arguing Warhol’s copyright infringement was Fair Use. Here is the conclusion from the court papers:

1. The Prince Series was transformative as Goldsmith’s photo shows Prince “not a comfortable person,” the Prince Series shows the singer as an “iconic, larger-than-life figure.”
2. The court accepted that the Goldsmith photo was creative and unpublished, which is in her favor. However, this was “of limited importance because the Prince Series works are transformative works.”
3. In creating the Prince Series, Warhol “removed nearly all [of] the [Goldsmith] [P]hotograph’s protectable elements.”
4. The Prince Series works “are not market substitutes that have harmed – or have the potential to harm – Goldsmith.”

‘The humanity Prince embodies in Goldsmith’s photograph is gone,’ ruled Judge John G. Koeltl. ‘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.’

Goldsmith’s appeal

In her appeal, Goldsmith firstly argued that the perceived intent of the artist – her photo making Prince look ‘not comfortable’, and Warhol turning him ‘large than life’ – cannot constitute a transformation. Over time, an audience’s perception of the art piece may evolve, making the artist’s original intent redundant. The appeals court agreed.

‘In conducting this inquiry, however, the district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,’ the court ruled. ‘That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.’

Goldsmith also argued that just because it’s recognisable as a Warhol work, doesn’t provide the renowned artist the privilege to copyright infringement. Again, the court agreed stating that the transformation must comprise of ‘something more than the imposition of another artist’s style on the primary work’.

‘Finally, we feel compelled to clarify that it is entirely irrelevant to this analysis that “each Prince Series work is immediately recognizable as a ‘Warhol'”. Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others. But the law draws no such distinctions; whether the Prince Series images exhibit the style and characteristics typical of Warhol’s work (which they do) does not bear on whether they qualify as fair use under the Copyright Act. As Goldsmith notes, the fact that Martin Scorsese’s recent film The Irishman is recognizably “a Scorsese” “do[es] not absolve [him] of the obligation to license the original book” on which it is based.’

Click here to read the court paper. It’s a dry but interesting read, with it appearing that US courts are beginning to awaken to how Fair Use has been manipulated and abused in some cases.

But the battle ain’t over, with AWF planning to appeal this decision.

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