Andy Warhol Foundation Asks Sdny To Declare Prince Serial Non Infringing

The Andy Warhol Foundation for the Visual Arts filed this calendar month a accommodate against lensman Lynn Goldsmith squall for the Southern District of New York Court (SDNY) to declare that the Andy Warhol Prince Series did non infringe on Defendant’s copyright, that the portraits inwards the serial are transformative industrial plant protected past times fair use, too that Defendant’s claim is barred past times the equitable doctrine of laches. The instance is The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith too Lynn Goldsmith, Ltd., 1:17-cv-2532.

Andy Warhol died inwards 1987, too his volition directed that almost all of his estate should last used to exercise a foundation dedicated to the “advancement of visual arts.” Andy Warhol Foundation for the Visual Arts was created inwards 1987, and, some 1994, took ownership of all copyrights too trademarks owned past times Andy Warhol at the fourth dimension of his death.

Defendant photographed inwards 1981 musical creative somebody Prince, aka the Artist Formerly Known every bit Prince, or the Artist. The photograph shows Prince facing the viewer, wearing a white shirt too suspenders. Only the top role of his pants are shown.

Andy Warhol created a whole serial of portraits of Prince (the Prince Series), using his famous silkscreen printing technique, which he also used for his Marilyn Monroe portraits. The Prince Series “were inspired by [Defendant’s] photograph” (Complaint p. 13). The dissimilar portraits which are role of the Prince Series are variations of the same image, the human face upward of Prince, detached too seemingly floating over a unmarried color background, looking toward the viewer.

Andy Warhol, Prince (1984) Copyright AWF

Defendant licensed the photograph inwards 1984 to monthly magazine Vanity Fair, to last published inwards the Nov 1984 issue. One of the portraits of the Prince Series past times Warhol was also published inwards Vanity Fair inwards its Nov 1984 issue.

Defendant contacted the Foundation for the showtime fourth dimension inwards July 2016. Prince had died on Apr 21, 2016, too i of the portraits of the Prince Series was used for the encompass of The Genius of Prince, published past times Condé Nast inwards May 2016 to commemorate the musician’s life too works. Defendant “demanded that the Foundation pay a substantial total of coin too threatened to sue if the Foundation refused” (Complaint p.24).

Plaintiff filed suit, squall for the SDNY to declare that the Prince Series does non infringes Defendant’s copyright, too that the portraits are a fair usage of Plaintiff’s photograph.

Is the Prince Series Transformative? (First Fair Use Factor)

The Complaint concentrates on 2 of the fair usage factors, the showtime factor, the purpose too grapheme of the usage too the 4th factor, the result of the usage on the potential market.

In 2013, the Second Circuit Court of appeals held inwards Cariou v. Prince that twenty-five of Prince's artworks were fair usage because of their “entirely dissimilar aesthetic from Cariou's photographs.” In this case, Richard Prince, the appropriation artist, non the Artist formerly known every bit Prince, had used several photographs created past times Patrick Cariou to exercise his Canal Zone series.

 Indeed, the to a greater extent than transformative is a usage of a work, the to a greater extent than probable volition it last protected past times fair use. In our case, the Andy Warhol Foundation is claiming that the Prince Series “transforms the aesthetic too pregnant of the Prince Publicity Photograph” too lists a serial of examples showing how the Prince Series visually differs from the photograph (Complaint p. fourteen to 17).

The Complaint notes, for example, that the portraits inwards the Prince Series focuses on the human face upward of the subject, whereas the photograph shows Prince below the waist. The photograph shows Prince’s natural colors, whereas the portraits of the Prince Series usage “unnatural neon colors.” Prince’s eyes are to a greater extent than heavily made-up inwards the Prince Series, the angle of the human face upward differs from the angle of Prince’s human face upward inwards the photograph, too the lite reflected on Prince’s human face upward inwards the photograph does non appear inwards the portraits made past times Warhol.

Plaintiff argues that Warhol’s industrial plant are fifty-fifty to a greater extent than fundamentally dissimilar from the photograph, beyond mere visual differences, because the icon inwards the Prince Series “may reasonably last perceived every bit simultaneously honoring the celebrity of Prince spell also conveying that Prince (like Marilyn Monroe too many other subjects of Warhol’s works) is a manufactured star amongst a phase name, whom monastic say has reduced to a commodity” (Complaint p. 18). The essence of the Prince Series, a comment, is dissimilar than the master copy photograph, which was a publicity photograph.

Does the Prince Series Usurp the Market of the Photograph? (Fourth Fair Use Factor)

Plaintiff also debate that Warhol’s industrial plant too Defendant’s operate exercise non target the same audiences, nor exercise they target the same fine art collectors or the same commercial markets. Andy Warhol’s industrial plant are “primarily sold to collectors of high-end Pop Art” (see here), which is non the instance for the photograph (p.19).

Is the Copyright Claim Against the Foundation Barred past times Laches?

Laches is an equitable defence forcefulness where the accused (or, inwards our case, the plaintiff seeking declaratory judgment) claims that the other political party commenced accommodate amongst an unreasonable too prejudicial delay. The Warhol Foundation claims that Defendant should select known most the Prince Series afterward Vanity Fair published i of the Prince portraits inwards Nov 1984, because “[a]ny reasonable somebody inwards Defendant’s seat would select reviewed the Nov 1984 number of Vanity Fair, if exactly to confirm that Vanity Fair had complied amongst the license price described above” (Complaint p. 20).

Since Defendant failed to timely file a copyright infringement suit, she prevented the Foundation to last able to defend itself, every bit Andy Warhol had died inwards 1987, 3 years afterward Defendant should select known most the Prince Series. Documents pertaining to the dispute may select been lost ordestroyed, too thus, every bit claimed past times Plaintiff, the evidentiary tape “has acquire prejudicially stale” (Complaint p.28).

The instance is interesting, but probable to settle or last dismissed, too hence may non acquire a famous copyright case, even for xv minutes.