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Anyone can create work like Andy Warhol’s in the digital age and it’s not protected by fair use, according to a photographer who’s suing the late pop artist’s estate for copyright infringement.
Warhol’s estate in April 2017 sued photographer Lynn Goldsmith, asking the court for a declaration that his 1984 paintings of Prince don’t violate her copyright in the photo from which they originated because, although the artist often used photographs as inspiration, his works were “entirely new creations.” She filed a counterclaim for copyright infringement a few months later.
Now both sides are asking the court to rule in their favor in dueling motions for summary judgment.
Goldsmith licensed the black-and-white version of her 1981 photo of Prince to Vanity Fair in 1984 “for use as artist reference for an illustration,” and claims it was for a one-time use. Warhol created 16 separate works from her image, and after he died his estate licensed one of them to the magazine for a 2016 special-edition cover.
The photographer argues the court should grant her copyright claim on summary judgment because Warhol’s work directly copied hers and she says his estate can’t argue it’s protected by fair use.
“In today’s digital world, anyone can easily modify a photograph on a computer to add high contrast, coloration and artifacts,” states the motion, which argues that Warhol “did little more than that” in the works at issue. “Finding such superficial revisions to be ‘transformative’ fair use would give a free pass to appropriation artists and destroy derivative licensing markets for commercial photographers whose works are used without permission.”
The estate on Friday also filed a motion for summary judgment, arguing that the substantial similarity required for a copyright infringement claim centers on protectable elements like lighting, shading and the “aesthetic effect” and not the underlying subject.
“Warhol’s signature silk-screen technique (and, in some cases, freehand drawings) deliberately stripped away every protectable element of the underlying photograph,” states the motion. “The result, as Goldsmith herself has admitted, is that the only commonality remaining between Warhol’s Prince Series and her photograph is the rough outline of Prince’s face — which cannot be copyrighted as a matter of law.”
The estate’s attorneys also argue that the market for Goldsmith’s work isn’t harmed by Warhol’s because fine art collectors who buy his works are a different crowd than the rock-and-roll memorabilia collectors who buy hers.
While Goldsmith’s attorneys argue this case has potentially catastrophic consequences for photographers, the estate’s lawyers wax hyperbolic on the other end of the spectrum.
“A ruling against Andy Warhol in this case would undermine the shared goals of copyright and the First Amendment by calling into question established modes of artistic expression and chilling future creativity,” writes Luke Nikas in the filing, which is posted below. “It would defy history. It would create a torrent of doubt and dispute over artists long considered to be transformative and crucial contributors to ongoing social debates, such as Robert Rauschenberg, Marcel Duchamp, Sherrie Levine, Pablo Picasso, and many other household names.”
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