In a major loss for the Andy Warhol Foundation, the 2nd Circuit Court of Appeals ruled on Friday that the famed Pop artist did not make fair use of Lynn Goldsmith’s 1981 portrait of Prince for his own 1984 series of similar-looking images. The decision effectively overturns one made in 2019 by the Southern District Court of New York, which ruled in favor of the Andy Warhol Foundation, and the case will now return to a lower court.
The lawsuit, initially filed in 2017 by Goldsmith, a well-known celebrity photographer, concerned Warhol’s 1984 “Prince Series,” which features images based on the photographer’s portrait of Prince taken while on assignment for Newsweek. In 1984, Goldsmith licensed her Prince portrait to Vanity Fair, which then commissioned Warhol to make an artwork based on it. Warhol went on to create 15 more works as part of the series. Goldsmith claimed not to have been aware of the series until 2016, when Prince died and Condé Nast published a tribute magazine featuring Warhol’s image without any credit to Goldsmith.
At stake in that lawsuit were questions about whether Warhol’s works were “transformative.” Warhol had altered Goldsmith’s aesthetic in such a way that his images have shallower depth and brighter hues as compared to the original portrait. In his decision for the appeals court, Judge Gerald Lynch wrote that Warhol’s renditions of Goldsmith’s image could not be considered “transformative” because of these visual flourishes.
“The Prince Series retains the essential elements of its source material, and Warhol’s modifications serve chiefly to magnify some elements of that material and minimize others,” Lynch wrote. “While the cumulative effect of those alterations may change the Goldsmith Photograph in ways that give a different impression of its subject, the Goldsmith Photograph remains the recognizable foundation upon which the Prince Series is built.”
Furthermore, Lynch wrote, Goldsmith’s ability to license her portrait to publications could be weakened by the Warhol series. “Although the primary market for the Goldsmith Photograph and the Prince Series may differ,” the court’s decision reads, “the Prince Series works pose cognizable harm to Goldsmith’s market to license the Goldsmith Photograph to publications for editorial purposes and to other artists to create derivative works based on the Goldsmith Photograph and similar works.”
“I’m grateful for the court of appeals’ decision,” Goldsmith said in an email, adding that she had pursued an appeal “to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work—and also to decide when, how, and even whether to exploit their creative works or license others to do so.”
Luke Nikas, a lawyer representing the Andy Warhol Foundation, said in a statement to ARTnews that there are plans to challenge Friday’s decision. “Over fifty years of established art history and popular consensus confirms that Andy Warhol is one of the most transformative artists of the 20th Century,” he said. “While the Warhol Foundation strongly disagrees with the Second Circuit’s ruling, it does not change this fact, nor does it change the impact of Andy Warhol’s work on history.”