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IP/Entertainment Case Law Updates

The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

District court finds Andy Warhol’s use of black-and-white photograph of pop icon Prince as basis for stylized silkscreen paintings, screen prints and drawings constituted fair use and did not infringe photographer’s copyright, granting summary judgment in favor of non-profit foundation that owns copyrights in Warhol’s works

In December 1981, music photographer Lynn Goldsmith photographed music icon Prince at her studio following his performance at the Palladium in New York City. Goldsmith, whose work purportedly centered on helping her subjects formulate their identities, selected “a plain white background” for the shoot so as to emphasize Prince’s “chiseled bone structure,” and snapped a series of photographs of the performer, using both black-and-white and color film. According to Goldsmith, the photographs captured Prince as a “vulnerable human being” and illustrated that he was “not a comfortable person.”

In October 1984, Conde Nast licensed one of Goldsmith’s black-and-white photographs of Prince and commissioned famed pop artist Andy Warhol to create an illustration of Prince based on Goldsmith’s photograph to accompany a Vanity Fair article titled “Purple Fame.” At the time, Goldsmith did not know which photograph had been licensed nor that Warhol had been commissioned to use it to develop an illustration for the magazine. The Vanity Fair article was published the next month and attributed the “special portrait” accompanying the article to Warhol while attributing the copyright in the “source photograph” to Goldsmith.  

Thereafter, Warhol used the same black-and-white photograph from Goldsmith to create 16 silkscreen paintings, screen prints and drawings of Prince in a variety of color combinations typical of Warhol’s style at the time, and these works collectively were later dubbed the “Prince Series.” Goldsmith never saw any works in the “Prince Series” and allegedly did not learn that Warhol had created them until after Prince’s death in April 2016. To pay tribute to Prince after his death, Conde Nast republished its 1984 Vanity Fair article online and released a commemorative magazine titled The Genius of Prince featuring one of Warhol’s Prince Series works on its cover. The publisher obtained a license for the Prince Series works from the Andy Warhol Foundation for the Visual Arts, which acquired ownership over the late artist’s works following his death in 1987. Goldsmith contacted the foundation claiming that the work featured on the commemorative magazine cover infringed her black-and-white photograph of Prince, and she subsequently registered a copyright in her photograph as an unpublished work.  

In 2017, the foundation filed suit against Goldsmith, seeking a declaration that Warhol’s use of the black-and-white photograph to create his Prince Series did not constitute copyright infringement. Goldsmith filed a counterclaim alleging that Warhol’s creation of the series and the foundation’s subsequent licensing of one of the works to Conde Nast for publication in its commemorative magazine constituted infringement. The parties cross-moved for summary judgment, and the court granted judgment in favor of the foundation. 

Goldsmith argued that Warhol, in creating his Prince Series, reproduced her entire photograph, including its protectable and unprotectable elements, without authorization. The foundation did not contest that Warhol had access to Goldsmith’s photograph and used it to create his Prince Series, but argued that the works are not substantially similar under the ordinary observer test. Sidestepping this question entirely, the court held that “it is plain that the Prince Series works are protected by fair use.”

The court concluded that three of four fair use factors weigh in favor of the foundation. As to the purpose and character of the use, the court held that although the Prince Series works are commercial in nature, they also add value to the broader public interest by funding the foundation’s public-facing programs aimed at promoting the creation and public display of visual art. In any event, the court held, the works’ commercial nature is of limited import because they are transformative. According to the court, in contrast to Goldsmith’s black-and-white photographic depiction of Prince as “not a comfortable person” and a “vulnerable human being,” the Prince Series works “can reasonably be perceived to reflect the opposite” through the use of “loud, unnatural colors” that transform Prince into “an iconic, larger-than-life figure.” In other words, Warhol’s alterations to Goldsmith’s work imbued the Prince Series with “an aesthetic and character different from the original.” Accordingly, the first fair use factor weighed in favor of the foundation.

The third fair use factor, which considers the amount and substantiality of the portion used in relation to the copyrighted work as a whole, also weighed in the foundation’s favor, the court found. It rejected Goldsmith’s argument that the Prince Series works “contain the essence of the entire” photograph, analogizing to other cases in which courts have held that artistic works based on photographs constituted fair use. Although Warhol copied the pose and angle of Prince’s head from Goldsmith’s photograph, as the court noted, Warhol omitted the portion of her photograph showing Prince’s torso. Warhol also removed nearly all of the creative elements present in Goldsmith’s photograph, the court stated, by softening and shading over the contours of Prince’s face, flattening the dimensionality of the photograph, and trading black and white for loud, expressive colors so as to “wash away the vulnerability and humanity Prince expresses” in Goldsmith’s work. For these reasons, the court held, Warhol used almost none of the protectable elements of Goldsmith’s work.

Finally, the court held that the fourth fair use factor, which considers the effect of the use on the potential market for or value of the copyrighted work, weighed in the foundation’s favor as well. The court rejected Goldsmith’s argument that potential licensees would view Warhol’s stylized works as substitutes for her “intimate and realistic photograph” of Prince. “Put simply,” the court said, “the licensing market for Warhol prints is for ‘Warhols.’”

Summary prepared by Frank D’Angelo and Mary Jean Kim.