Photographer fires back in Supreme Court fight over Warhol works

The U.S. Supreme Court stands in Washington
The U.S. Supreme Court stands in Washington, U.S., February 6, 2022. REUTERS/Joshua Roberts
  • Photographer says high court should pass on art world copyright case
  • Appeals court found Warhol's Prince series not immune from copyright claims

(Reuters) - Photographer Lynn Goldsmith is urging the U.S. Supreme Court to reject an appeal by the Andy Warhol Foundation in its dispute over Warhol's paintings of Prince, arguing his works didn't make fair use of her photo of the late rock star.

Goldsmith said in a Friday brief that the foundation's warnings about the effect of the case on the art world were unfounded, and that Warhol's Prince series wasn't transformative enough to immunize his works from copyright claims.

Goldsmith photographed Prince for Newsweek in 1981. One of her photos was licensed to Vanity Fair magazine, which commissioned Warhol for art based on it in 1984.

Warhol later made several silkscreen works that recreated the photo without Goldsmith's permission. Goldsmith sued the Andy Warhol Foundation for copyright infringement in 2016.

Last March, the 2nd U.S. Circuit Court of Appeals sided with Goldsmith and reversed a Manhattan federal court ruling that Warhol made fair use of the photo.

Fair use often hinges on whether a new work is transformative, and District Judge John Koeltl had said Warhol's works transformed Goldsmith's portrayal of Prince as a "vulnerable" person into a "larger-than-life figure."

But the 2nd Circuit found that Warhol's work wasn't transformative because the two works had the same purpose, as pieces of visual art that portray Prince.

The Andy Warhol Foundation asked the Supreme Court in December to review the ruling, arguing it causes legal uncertainty for artists, goes against Supreme Court precedent and creates a circuit split.

The foundation said Warhol had transformed Goldsmith's photo into "iconic works commenting on celebrity and consumerism."

Goldsmith, in her response, differentiated Warhol's Prince works from his iconic paintings of Campbell's soup cans, which have been held out by some as classic examples of fair use.

"Unlike a manufacturer's soup can, which is ultimately destined for the garbage can, here Goldsmith's original work is itself an artistic portrait of an individual," she argued.

Goldsmith's brief also said the foundation's concerns about the decision's negative effect on the art world were overblown.

"The sky is not remotely close to falling," she said.

A lawyer for the Warhol Foundation declined to comment on the brief. Goldsmith's attorney didn't immediately respond to a request for comment.

The case is Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith, U.S. Supreme Court, No. 21-869.

For the foundation: Roman Martinez and Andrew Gass of Latham & Watkins

For Goldsmith: Lisa Blatt of Williams & Connolly

Read more:

2nd Circuit reverses win for Andy Warhol Foundation over Prince images

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets, for Reuters Legal. He has previously written for Bloomberg Law and Thomson Reuters Practical Law and practiced as an attorney. Contact: 12029385713