Warhol wins on fair use of photo (but should’ve won on substantial similarity)

Andy Warhol Foundation for the Visual Arts, Inc. v.
Goldsmith, No. 17-cv-2532 (JGK) (S.D.N.Y. Jul. 1, 2019)
In some sense, this fair use case is a foregone conclusion;
even the terrible Saderup decision made an exception for Andy Warhol,
because we all know that his touch (filtered through the actual human touch of
assistants) confers new meaning and value on an artwork.  The other thing this case illustrates is that
courts are more comfortable with fair use than they are with a true
infringement inquiry (did the defendant copy too much protected material from
the plaintiff?) when the real problem with the claim is that the defendant
copied without taking very much, if any, protected material.  The third factor analysis here even
implicitly admits that the plaintiff hasn’t identified any expression
that was taken from her photograph of Prince. 
If we were really concerned that transformativeness has gone too far—I’m
not, but I also think we should be serious about requiring substantial
appropriation of protected expression—then one way to deal with that problem
would be to take infringement more seriously rather than using fair use as a
clean-up tool.  The finding of
transformativeness here is in part the flip side of the lack of copying of
protected expression: Warhol’s prints were readily able to bear new meaning and message
because the expression in the original photo had been abstracted away, not
because of a Sherrie Levine-style appropriation.

Anyhow, “Lynn Goldsmith is a photographer who has
photographed numerous rock, jazz, and R&B performers,” and her work “centers
on helping others formulate their identities, which she aims to capture and
reveal through her photography.”  She
uses both interpersonal techniques to establish rapport and photographic
techniques with respect to lighting, camera position, and other elements to
capture her subjects’ “true selves.” She photographed Prince in her studio on
assignment from Newsweek in 1981. He arrived wearing makeup, and she applied
more “to connect with Prince physically and in recognition of her feeling
[that] Prince was in touch with the female part of himself” while also being “very
much male.” He was photographed in his own clothes, except for a black sash
that he picked from Goldsmith’s clothing room and wore around his neck. Goldsmith
decided to use a plain white background and lit the shoot in a way that
emphasized Prince’s “chiseled bone structure.” Goldsmith believed that the
photographs from her shoot with Prince show that he is “not a comfortable
person” and that he is a “vulnerable human being.”
 

1984 Vanity Fair portrait
In 1984, Vanity Fair licensed one of these studio portraits
for use as an artist’s reference. Goldsmith’s photography agency submitted the
photo; Goldsmith herself did not know at the time that the photograph had been
licensed for use as an artist’s reference. Vanity Fair commissioned Warhol to
create an illustration of Prince for an article titled “Purple Fame,” which
stated that it featured “a special portrait for Vanity Fair by ANDY WARHOL.”
The credit included: “source photograph © 1984 by Lynn Goldsmith/LGI.” Warhol then
created the “Prince Series,” comprised of sixteen distinct works: twelve
silkscreens, two screen prints on paper, and two drawings. Although Goldsmith
alleged that Warhol bodily copied her photo as part of his creation process,
defendant AWF didn’t concede this and it doesn’t matter, because any exact
reproduction occurred 40 years ago, well beyond the limitations period.
color version of one of the images
 

Goldsmith first learned that Warhol created the Prince
illustration for Vanity Fair after Prince’s death, when it republished the
image online; initially, she told AWF that use infringed one of her colored
Prince portraits but, after further comparison, identified instead the black
and white photo at issue in this case. She then registered the photo as an
unpublished work. AWF makes the Prince Series available for licensing to third
parties for use in books, magazines, newspapers, and for other merchandizing
purposes. Goldsmith licenses single images of her photography, and has issued
10 or 11 licenses for other photos of Prince in concert and at other venues,
but hasn’t editioned or sold any prints of the photo here; she intends to start
in the future, when prices will be higher. In 2004, she sold a fine-art print
of Prince that she created in 1993 to a private collector who also owns three
Warhol works of art.
Fair use factor one: the Prince Series is commercial, but
public exhibition of art is in the public interest. Anyway, transformativeness
trumps commerciality. The question is whether new meaning/message may
reasonably be perceived and the answer is yes. 
Goldsmith focused on revealing identity, and her photo illustrated that
Prince was “not a comfortable person” and that he is a “vulnerable human being.”
Warhol’s Prince Series, in
contrast, can reasonably be perceived to reflect the opposite. In all but one
of the works, Prince’s torso is removed and his face and a small portion of his
neckline are brought to the forefront. The details of Prince’s bone structure
that appear crisply in the photograph, which Goldsmith sought to emphasize, are
softened in several of the Prince Series works and outlined or shaded in the
others. Prince appears as a flat, two-dimensional figure in Warhol’s works,
rather than the detailed, three-dimensional being in Goldsmith’s photograph.
Moreover, many of Warhol’s Prince Series works contain loud, unnatural colors,
in stark contrast with the black-and-white original photograph. And Warhol’s
few colorless works appear as rough sketches in which Prince’s expression is
almost entirely lost from the original.
These alterations result in an
aesthetic and character different from the original. The Prince Series works
can reasonably be perceived to have transformed Prince from a vulnerable,
uncomfortable person to an iconic, larger-than-life figure. 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 the same way that Warhol’s famous representations of Marilyn Monroe and
Mao are recognizable as “Warhols,” not as realistic photographs of those
persons.
One could reasonably object to the last sentence as carving
out an Andy Warhol exception, but the rest of it is hard to dispute (and
provides some reason to think that Warholization is transformative, albeit not
a tactic limited to Warhol himself).
Factor two: unpublished status would ordinarily weigh in
Goldsmith’s favor, but “the reasons unpublished works enjoy additional
protection against fair use – including respect for the author’s choices of
when to make a work public and whether to withhold a work to shore up demand –
carry little force in this case, where Goldsmith’s photography agency licensed
the photograph for use as an artist’s reference.” Anyway, factor two is of
limited relevance for transformative works. Favors neither party.
Factor three: Goldsmith argued that the Prince Series works
contain the essence of the entire Goldsmith Prince photo.  Her best argument for this was apparently
that Vanity Fair told him to use the photo, and thus must have required that he
include the expression in the photo.  The
court compared this case to the Seventh Circuit case of Kienitz v. Sconnie
Nation LLC, and helpfully included the relevant images in the opinion to show
why the comparison was apt. The Kienitz court, while—as the district
court here specifically noted—criticizing Cariou, found fair use,
placing particular emphasis on the third factor. The Warholization-like process
employed “removed so much of the original that, as with the Cheshire Cat, only
the smile remains,” even though it weighed against the defendants the claim
that they didn’t need to use that particular photo “when so many noncopyrighted
[sigh] alternatives (including snapshots they could have taken themselves) were
available.” Here, by contrast, Warhol was required to use the photo.
 

Kienitz images
This case was Kienitz plus Cariou: Though the
Goldsmith photo had protectable elements, which could include “posing the
subjects, lighting, angle, selection of film and camera, evoking the desired
expression, and almost any other variant involved,” “these creative elements
are almost entirely absent from the Prince Series works.”  The cropping was different; Goldsmith’s photo
included much of Prince’s torso.  The
Prince Series softens, shades, or traces over the sharp contours of Prince’s
face that Goldsmith emphasized in her photo. The 3D effect of the photo, produced
by the background and lighting that Goldsmith chose, was replaced by “a flat,
two-dimensional and mask-like figure of Prince’s head,” and mostly on a loudly
colored background; the Warhol works that were in black and white “especially
crude and the creative features of the Goldsmith Prince Photograph are
especially absent.”  Here you see the
flip side of transformativeness in the factor three analysis: “Ultimately,
Warhol’s alterations wash away the vulnerability and humanity Prince expresses
in Goldsmith’s photograph and Warhol instead presents Prince as a
larger-than-life icon.”
The pose and angle of Prince’s head were copied, but “such a
pose cannot be copyrighted” because copyright law “protect[s] only plaintiff’s
particular photographic expression of [a] pose[] and not the underlying ideas
therefor.” Several non-Goldsmith photographs also captured Prince in a similar
pose, “indicating that the pose is not particularly original.” The distinctive
way in which Goldsmith presented Prince’s uncopyrightable facial features was
absent from the Warhol works, which each contained “little, if any, of the copyrightable
elements” of Goldsmith’s photo (which is why this should be a non-substantial similarity case).  Heavily favors fair use.
Factor four: Goldsmith argued that the Prince Series harmed
her licensing markets, which overlap with AWF’s licensing markets.” Her evidence
didn’t show market substitution. 
Although her photos and Warhol’s works have appeared in magazines and on
album covers, “this does not suggest that a magazine or record company would
license a transformative Warhol work in lieu of a realistic Goldsmith
photograph.”  The licensing market for
Warhol prints is for Warhols, not for portrait photos like Goldsmith’s. One
collector who owned three of Warhol’s works of art also bought a fine-art print
of Prince from her. “But as AWF persuasively argues, this does not suggest that
the collector bought the works for the same reason, perceives the works
similarly, or believes the works are substitutes for each other (the fact that
the collector owns both of them suggests the opposite).” The court declined to
rely on AWF’s expert report or on one of its fact witnesses on the market, and
didn’t rule on excluding Goldsmith’s expert; even taking his opinions into
account on licensing, the fourth factor favored AWF. “The evidence shows that
the Prince Series works are not market substitutes that have harmed – or have
the potential to harm Goldsmith.” And we’re done.

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