Last Friday, the Second Circuit ruled that Andy Warhol’s “Prince Series” was not fair use and sent the case back to the lower court to determine infringement damages.  The case stems from a lawsuit by photographer Lynn Goldsmith.  In 1981, Goldsmith took a photograph of music legend Prince. In 1984, she licensed the image to Vanity Fair, which, unbeknownst to Goldsmith, commissioned Andy Warhol to create a painting based on the photograph.  Warhol would go on to create another 15 works based on the photograph, which he called the “Prince Series”.   

Goldsmith claimed she first learned of the Series after Prince’s death in 2016, when Warhol’s paintings were featured in a tribute to Prince but no mention was made of her underlying photograph.  She sued the Warhol Foundation in 2017 for copyright infringement.  In 2019, the Southern District ruled that the paintings did not infringe Goldsmith’s photograph.  She appealed.  The court examined whether Warhol’s work was truly transformative.  It found that while Warhol added color and highlighted certain features while subduing others, the underlying work he had based his paintings on was easily recognizable.  The court also examined the impact on the market for Goldsmith’s original work.  It found that factor weighed heavily in Goldsmith’s favor, as it limited her ability to not only license the original work but to license it to others to create derivative works.  The Warhol Foundation plans to appeal the court’s ruling.