Court Rules Warhol's Reimagining of Prince Photo as Fair Use

Wow word in pop art retro style
By Andrew Leonatti on July 08, 2019 2:00 PM

The artist Andy Warhol was famous (or notorious, depending on your opinion of Pop Art) for finding new, explosively colorful ways of portraying people and everyday objects.

Though he died in 1987, a recent federal court ruling now brings the subject of Warhol’s “appropriations” back into the art world consciousness.

Judge: Warhol ‘Transformed’ Original Photo

This case revolved around Warhol’s reimagining of a series of portraits of the late singer Prince taken by famous photographer Lynn Goldsmith.

Playing the role of judge and art critic, U.S. District Judge for the Southern District of New York John Koeltl wrote that Warhol’s usage of the photo constituted fair usage of Goldsmith’s 1981 copyrighted work.

“The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure,” Koeltl wrote. “The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince.”

In 1984, the magazine Vanity Fair purchased a one-time license for one of Goldsmith’s photos for Warhol to transform it into his iconic style. Warhol then went on to create a series of 16 portraits of The Purple One.

In 2016, the Andy Warhol Foundation for the Visual Arts then licensed one of Warhol’s Prince works to Vanity Fair parent company Condé Nast for $10,000 for use after Prince’s death. Goldsmith argued that licensing violated her opportunity to profit off her copyrighted work.

What Constitutes ‘Fair Use’?

While the Warhol Foundation argued, and Koeltl agreed, that Warhol’s images were substantial reimagining’s of the original source work, Goldsmith deemed it straight appropriation.

In determining whether Warhol’s work counted as Fair Use, Koeltl likely considered the following four factors laid out in the Copyright Act:

  • The purpose and character of the usage: Was Warhol’s work transformative and did it create a new expression of the original work?
  • The nature of the original work: Since Goldsmith’s photo was factual, did it deserve less protection than if she, say, painted Prince?
  • The amount of the copyrighted work used: Did Warhol change enough of the photo, and did he avoid copying the “central part” of the work?
  • The effect of the usage on the copyrighted work’s ability to profit: Since Warhol’s piece was different enough from Goldsmith’s photo, was the Warhol actually competing against Goldsmith being able to sell copies of her photo?

There are no specific guidelines for what constitutes fair usage. However, Warhol is no stranger to these arguments. While Campbell’s Soup appreciated the free publicity, according to the Revolver Gallery, which is devoted entirely to Warhol’s career and works, a photographer sued him 1966 over his usage of her flower photos. The case led Warhol to develop a passion for photography. The Prince works were some of his last famous pieces before his death.

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