U.S. backs photographer at Supreme Court in Andy Warhol copyright battle

People are reflected on a portrait of U.S. artist Andy Warhol by Timm Rautert during the exhibit "Warhol on Warhol" at Madrid's Casa Encendida Cultural Centre on November 23, 2007. REUTERS/Susana Vera
  • Licensing of Warhol painting eroded photographer's market -brief
  • Argued Warhol's 'new meaning' did not make work transformative

(Reuters) - The U.S. government urged the U.S. Supreme Court on Monday to rule that a photographer can pursue a copyright lawsuit over Andy Warhol's paintings of her photo of the music star Prince.

Warhol, who died in 1987, did not make fair use of Lynn Goldsmith's photograph under copyright law, according to the brief filed by the U.S. Department of Justice's Solicitor General and the U.S. Copyright Office.

The Copyright Office, Department of Justice and an attorney for Goldsmith declined to comment.

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Roman Martinez of Latham & Watkins, an attorney for the Andy Warhol Foundation for the Visual Arts, said the fair use doctrine "provides crucial protection to free artistic expression, including the transformative Warhol works at issue here."

Martinez said the Foundation, which owns Warhol's intellectual property rights, looks forward to presenting their arguments to the high court in October.

Goldsmith photographed Prince for Newsweek in 1981. Warhol later made several unlicensed paintings that recreated one of the photos.

Goldsmith said she did not learn about the paintings until after Prince died in 2016. She accused the Warhol Foundation of copyright infringement in 2017, after it asked a Manhattan federal court to rule that his work did not violate her rights.

The Manhattan judge said that Warhol's works made fair use of Goldsmith's photo by transforming Goldsmith's "vulnerable" portrayal of Prince into an "iconic, larger-than-life figure."

But the 2nd U.S. Circuit Court of Appeals said a transformative work must have a "fundamentally different and new artistic purpose and character," and Warhol's paintings were "much closer to presenting the same work in a different form."

The U.S. government sided with the 2nd Circuit on Monday in the Warhol Foundation's Supreme Court appeal of the decision.

The brief focused on the foundation's specific act of alleged infringement -- a 2016 license to Conde Nast. The government said the license "served the same purpose — depicting Prince in an article about him published by a popular magazine — for which Goldsmith's photographs have frequently been used."

The government also said finding that Warhol's supposed new meaning transformed Goldsmith's photograph would "dramatically expand copyists' ability to appropriate existing works."

"Classic derivative works that are commonly understood to require licensing — including sequels, motion-picture and stage adaptations, spinoffs, remakes, and cross-over works — inevitably introduce new meaning," the brief said.

The government also asked the court to let it participate in an oral argument scheduled for Oct. 12.

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

For Warhol: Andrew Gass, Roman Martinez and Samir Deger-Sen of Latham & Watkins

For Goldsmith: Lisa Blatt and Thomas Hentoff of Williams & Connolly

Read more:

U.S. Supreme Court takes up copyright battle over Warhol's Prince paintings

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com