AuthorStech, Molly Torsen

The Second Circuit Court of Appeals released its decision in Andy Warhol Foundation for The Visual Arts, Inc. v. Lynn Goldsmith, et al, on 26 March 2021. (1)

That afternoon, artist and photographer Lynn Goldsmith wrote on her Facebook page:

Today our court delivered a ruling which affects all visual artists. I'm grateful for the court of appeals decision. Four years ago, the Andy Warhol Foundation sued me to obtain a ruling that it could use my photograph without asking my permission or paying me anything for my work. I fought this suit 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 .... (2) SUMMARY

The Second Circuit Court of Appeals reversed and remanded the district court ruling that had ruled Mr Warhol's works to be a fair use. The district court case came about because Ms Goldsmith, in 2016, became aware of a series of works made by Warhol based on Goldsmith's photographs of the artist known as Prince ('Prince'). In 1984, she had licensed the magazine Vanity Fair to use her photographs as an 'artist reference' for an illustration that would comprise one full page and one quarter page of an issue of the magazine, and would credit her for the underlying work.

Warhol, however, had made an additional fourteen silkscreen prints and two pencil illustrations based on her photographs and those works are now in a variety of collections. Following Prince's death in the spring of 2016, Conde Nast, Vanity Fair's parent company, contacted the Andy Warhol Foundation, which had obtained the rights in the Prince series, in order to design and release a tribute issue to the musician. The images were printed in that issue in May, without attribution to Ms Goldsmith. Surprised these images existed, she contacted the Foundation to signal that she believed these works, and their reproduction, infringed her rights. The Foundation sued Goldsmith for a declaratory judgment of non-infringement (or of fair use in the alternative) and Ms Goldsmith countersued for copyright infringement.

The appeals court held that Andy Warhol's use of a photograph of Prince, which used Ms Goldsmith's photograph as the basis on which to create a series of mostly silkscreened images of Prince, was not fair use. Although the lower court did not specifically decide whether Warhol's works were substantially similar to Goldsmith's photograph, the Second Circuit explicitly did find them to be substantially similar.

Ms Goldsmith's photographs are in the collections of several world-class art institutions, including the Smithsonian, the Museum of Modern Art, and the Kodak Collection. Her artwork expands beyond photography, but she is arguably best known for her luminous portrait photographs of subjects spanning from musicians to authors to sports stars. She photographed Patti Smith, Chris Cornell, Bob Marley and Bruce Springsteen, among many others. And, of course, she also photographed Prince. In addition to her fine art photography and other multimedia artwork, she has also been a successful businesswoman, founding and managing a photo agency in 1967 that managed celebrity portraits for editorial use. Over 30 years, the agency represented more than 200 photographers. (3) Ms Goldsmith is a rare individual who appreciates both the creative process and the business aspects of making a living as a professional artist; her efforts in pushing the fair use pendulum back toward a more reasonable equilibrium reflect and respect this balance.

This case note will briefly review the fair use doctrine in the United States, summarise recent case law that potentially signals a return from an overly permissive interpretation of the 'transformative use' canon, and demonstrate how the fair use doctrine for the visual arts is, for the moment, better calibrated in the wake of the Goldsmith decision. (4)


Fair use is an American legal doctrine with its origins in common law and codified in the 1976 Copyright Act that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act (5) stipulates the statutory framework for determining whether a use is fair and identifies certain types of uses--such as criticism, comment, news reporting, teaching, scholarship, and...

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