![]() Most controversially, the panel said that it had refused to consider the “intent behind or meaning of the works at issue” and therefore disregarded the notion-advanced by the Warhol Foundation and accepted by the district court-that Warhol had “transformed” Goldsmith’s photograph by converting her image of Prince as “a vulnerable human being” into an image of Prince as an “iconic, larger-than-life figure.” Instead, the Second Circuit held that the differences between the works are more akin to the differences between a novel and an adaptation of that novel-“a paradigmatic example” of a derivative work that would require a license. It found that all four fair use factors weighed against fair use. ![]() On March 26, 2021, the Second Circuit issued an opinion reversing the district court’s decision. With the help of a loan and donations to her GoFundMe campaign, Goldsmith appealed. Prince (no relation), in which the Second Circuit rejected the premise that a secondary work must comment on the original to be sufficiently “transformative” to qualify as fair use. In reaching that determination, the court relied chiefly on the Second Circuit’s 2013 decision in Cariou v. The district court granted the Warhol Foundation’s motion for summary judgment, holding that the Prince Series was fair use, and dismissed Goldsmith’s counterclaim for copyright infringement. Goldsmith counterclaimed for copyright infringement. In 2017, the Warhol Foundation sued Goldsmith and her agency for a declaratory judgment that the Prince Series works are non-infringing or, in the alternative, that they constitute a fair use of the Prince Photograph. Upon first learning of the Prince Series after Prince’s death-when she noticed the Condé Nast magazine cover-Goldsmith notified the Warhol Foundation that she considered the magazine’s use of the Prince Series image to violate her copyright in the Prince Photograph. Following Prince’s sudden and untimely death in 2016, the Warhol Foundation, successor to the copyright in the Prince Series, licensed to Condé Nast one of the Prince Series images for use in a commemorative magazine titled The Genius of Prince, which featured on its cover the image from the Prince Series. But unbeknownst to Goldsmith, he also created fifteen additional works (including silkscreen prints and pencil drawings) using the Prince Photograph for his own artistic purposes. ![]() A few years later, in 1984, Goldsmith’s agency, which had retained the rights to those images, licensed one of them to Vanity Fair for use in an article called “Purple Fame.” Vanity Fair, in turn, commissioned Warhol to make a silkscreen using Goldsmith’s photograph. In 1981, Goldsmith, who was then a portrait photographer for Newsweek, took a series of photographs of the then-up-and-coming musician Prince. The Supreme Court’s ruling on that petition-and a possible eventual decision on the merits-could have enormous implications for the art world and other industries impacted by copyright law. Now the Warhol Foundation has petitioned the United States Supreme Court for review of the Second Circuit’s amended decision. ), and issued a new decision in which it reached the same result. Since we last discussed that decision on this blog in June 2021, the Second Circuit reconsidered it following a subsequent landmark Supreme Court decision addressing fair use ( Google LLC v. ![]() That decision shook the art world, as it seems to dramatically narrow the scope of the fair use doctrine, and raises doubts about the lawfulness of many existing works. In a controversial decision in March 2021, the United States Court of Appeals for the Second Circuit held that a 1984 series of silkscreen paintings by the pop artist Andy Warhol depicting the musical legend Prince (the “Prince Series”)-based on a 1981 photograph of Prince by Lynn Goldsmith (the “Prince Photograph”)-infringed on Goldsmith’s copyright, and did not constitute a permissible fair use. ![]()
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