Andy Warhol, copyright and fair use

Andy Warhol (who passed way in 1987) was an artist who was an important contributor to the pop art movement that took flight in the 1950s. He created multiple silkscreen prints consisting of various different celebrities such as Marilyn Monroe, Elvis Presley and many more iconic figures.

In the 1980s, Warhol was commissioned by Vanity Fair who had requested that he create an image of Prince which would be further published alongside a narrative on the musician. They chose one of his vivid paintings from his series, which consisted of 14 silkscreens and two pencil artworks.

However, the painting was heavily inspired by an existing photograph of Prince taken by Lynn Goldsmith who was paid a one-off license fee of $400 by Vanity Fair to allow her 1981 black-and-white portrait of Prince to be relied upon by Warhol as a reference point.

Following Prince’s death in 2016, Condé Nast (operator/operator of Vanity fair) paid tribute to Prince by publishing a different painting from Warhol’s original series. The Andy Warhol Foundation, which had assumed possession of the original series following Warhol’s death, was paid $10,000 for the use of the new image.

However, Goldsmith $400 fee only permitted use of the image once and did not receive payment or credit for the use of her work as part of the 2016 tribute.

Once of the issues that the court had to consider was whether Warhol was entitled to use the work under the fair use exception, i.e. without paying a further license fee. The court held that the answer heavily depended on how the new image is depicted, and in particular whether or not Warhol’s work was considered to have a transformative purpose (such as parody, education or criticism).

In this case, the court ruled that Warhol’s work was not considered a transformative depiction because both his and Goldsmith’s work both serviced a commercial purpose and therefore Warhol’s unlicensed reproduction/adaptation of the earlier work was not covered by the fair use exception.

Briffa are experts in all aspects of intellectual property law and practice, including in particular non-contentious copyright matters such as licensing and contentious copyright matters such as infringement claims. If you have a copyright or other IP issues that you would like to discuss, please do not hesitate to get in touch and one of our lawyers will be happy to discuss with you.

Written by Éamon Chawke – Partner and Priyanka Vithlani – Work Experience