The Second Circuit recently held that artist Andy Warhol’s use of Lynn Goldsmith’s photograph of the musician Prince (the “Goldsmith Photograph”) to create fifteen new unauthorized silkscreen and pencil artworks (the “Prince Series”) was not fair use.
This decision has significant implications for the legacy of Andy Warhol and The Andy Warhol Foundation for the Visual Arts (the “Warhol Foundation”), which, as Warhol’s successor, now controls his copyrights. While the court did not affirmatively rule that Warhol’s Prince Series works are infringing, this fair use finding, coupled with the court’s additional finding that Warhol’s works are “substantially similar” to the original Goldsmith Photograph, all but assure an adverse infringement decision if the case returns to the lower court for further adjudication. Since a number of Warhol works appropriated third-party photographs without a license, an adverse fair use or infringement decision risks opening the floodgates of litigation. Not surprisingly, the Warhol Foundation has obtained additional time to request a panel rehearing or en banc review of the decision.i An appeal to the Supreme Court is also likely in the future, given the case’s stakes.
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