COURT RULES AGAINST WARHOL
MARCH 29, 2021 BY: THE ART NEWSPAPER
In a potentially game-changing decision, the US Court of Appeals for the Second Circuit has found that a 1980s portrait series by Andy Warhol depicting the singer Prince did not constitute “fair use” of the photograph by Lynn Goldsmith that it was based on.
The 26 March ruling by the three-judge panel in New York tempers the Second Circuit’s controversial 2013 decision in the case Cariou v. Prince, when it decided that most of the works in a series by the artist Richard Prince lawfully incorporated photographs by Patrick Cariou. Under that ruling, the key to fair use by another artist is whether the second work is transformative of the first, by conveying a new meaning or employing a different aesthetic. In its new decision, the court makes clear that these factors alone are not enough to protect an artist from an infringement claim.
“The implication of Cariou is that almost all appropriation art is fair use,” says the art lawyer William Charron. The Warhol decision is a warning that appropriation artists and those who license their work should proceed cautiously, he says.
The latter case involves a 1981 photograph that Goldsmith licensed to Vanity Fair in 1984 to be used as source material. Vanity Fair in turn commissioned Warhol to create an illustration of Prince for an article. Unbeknownst to Goldsmith, however, Warhol created 15 other artworks based on the photo. The Andy Warhol Foundation for the Visual Arts owns the copyright to these works, which it licenses to others.
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