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Adding a New Aesthetic or Expression Is Not Necessarily Transformative

by | Apr 1, 2021 | Copyrights, Intellectual Property

In 1981, photographer Lynn Goldsmith did a photoshoot with Prince while on assignment for Newsweek. While those images were never published, Vanity Fair licensed one of them in 1984 for an illustration by Andy Warhol. Mr. Warhol ultimately used the photo to create 16 different works. Goldsmith, however, did not even learn about them until 2016, when Vanity Fair published them — without giving her credit — following Prince’s death. 

As a preemptive measure, The Andy Warhol Foundation filed a lawsuit asking for the court to find that Warhol’s “Prince Series” did not violate Goldsmith’s copyright in April of 2017. She counter-sued, and in 2019, a district court sided with the Foundation, with the judge arguing fair use because — in his words — Warhol’s work changed a “vulnerable, uncomfortable person” in the original photo into “an iconic, larger-than-life figure.”

Goldsmith appealed the decision, and the 2nd Court of Appeals not only reversed the earlier decision, but Judge Gerard E. Lynch actually chided the district judge, saying “That was error…The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue.”

Lynch said that when new material is added to an existing work, it must be transformative. Simply adding “a new aesthetic or new expression” was not enough. He went on to compare Warhol’s work to turning a book into a film.

In other words, he found it derivative and therefore in violation of Goldsmith’s copyright.

Where Is the Line between Derivative and Transformative?

I could give you the definitions of each, but the simple truth is that there is no easy way to answer this question, legally speaking. You need look no further than Mr. Warhol himself to see this.

Andy Warhol’s entire artistic career was based on taking existing pop culture objects and altering them so that people experienced them in a new way. In fact, Warhol’s Marilyn Monroe was created in much the same way as the Prince image — he took an existing publicity still of the famous actress and altered it — and that is just one example.

Why was that acceptable while the Prince works were not?

Taking another person’s work and altering it with the intent of creating something new is complicated and full of potential peril if that work is not already in the public domain. If you are considering doing something like this, you would be wise to consider talking to an attorney or reaching out to the original artist for permission to use their work.


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