{"id":10879,"date":"2022-09-27T14:12:38","date_gmt":"2022-09-27T18:12:38","guid":{"rendered":"https:\/\/archive-lynchlaw.pfgsandbox.com\/?p=10879"},"modified":"2023-05-26T15:48:57","modified_gmt":"2023-05-26T19:48:57","slug":"photographers-rights-or-transformative-art","status":"publish","type":"post","link":"https:\/\/archive-lynchlaw.pfgsandbox.com\/?p=10879","title":{"rendered":"Photographers’ Rights or Transformative Art?"},"content":{"rendered":"

\"Mural<\/h2>\n

Update as of May 26, 2023<\/h2>\n
Earlier this month, the Supreme Court ruled 7 to 2 in favor of Lynn Goldsmith, the original photographer who provided the photographs that Andy Warhol would later adapt into his 1984 Prince Series for Vanity Fair. In her opinion for the majority, Justice Sonya Sotomayor focused on the overlapping enterprise of selling images to magazines in which The Andy Warhol Foundation and Lynn Goldsmith were mutually engaged. The decision, in this case, rested on the “fair-use” defense as it pertains to visual art for the reproduction of copyrighted work for use in education, criticism, comment, or parody<\/a>.<\/div>\n
<\/div>\n
For those in the art world, there is concern that this decision will limit the liberties of artistic expression\u00a0with some going so far as to argue that it feels like “censorship”<\/a>. While it is too soon to tell if that is true, it is a decision that will undoubtedly be considered as the mediums of visual art continues to expand. To read more about the background of the case, continue reading below.<\/div>\n
<\/div>\n

Are you \u201cTeam Warhol\u201d or are you \u201cTeam Goldsmith\u201d?<\/h2>\n

Well, that probably depends on whether you are a photographer who is interested in maintaining strong copyrights to your wares. It appears that the U.S. Copyright Office (CO) is on Team Goldsmith, as indicated by their amicus brief filing submitted to the US Supreme Court in the case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith<\/em><\/a>, where arguments will be heard on October 12, 2022. Let\u2019s go over the background leading to this SCOTUS case.<\/p>\n

The Back Story on Goldsmith’s Prince Photo<\/h2>\n

In 1984\u00a0Vanity Fair<\/em> licensed one of Goldsmith\u2019s photos of Prince, shot in December 1981, for $400 to create an illustration of Prince to be used in an article \u201cPurple Fame.\u201d Vanity Fair<\/em> did not inform Goldsmith that the photo was being used by Warhol as a reference, and she did not see the article when it was initially published. On April 21, 2016, at the age of 57, Prince died. The next day, on April 22, Cond\u00e9 Nast,\u00a0Vanity Fair\u2019s\u00a0<\/em>parent company, contacted the Andy Warhol Foundation (AWF). They were interested in producing a commemorative issue on Prince and wanted to use the 1984 image. Cond\u00e9 Nast obtained a license and published the tribute magazine, which carried a Prince Series image on an orange background on the cover in May 2016. The image was credited to the Foundation, and there was no mention of Goldsmith in the attribution. This is when Goldsmith discovered how her photo was used.<\/p>\n

The Prince Series<\/h2>\n

This is also when Goldsmith discovered that Warhol had created 15 additional artworks based on her black & white studio photograph. This was known as the \u201cPrince Series.\u201d She informed AWF in late July 2016 that the artwork had infringed on her copyright. In November 2016, Goldsmith had her Prince photo registered with the copyright office as an unpublished work. On April 7, 2017, AWF launched \u201cpreemptive strike\u201d against Goldsmith<\/a> by suing her before she had a chance to file a copyright infringement lawsuit first.\u00a0 AWF wanted a declaratory judgment of non-infringement or, in the alternative, a ruling that stated that the Prince Series was a fair use.<\/p>\n

What Factors Are Used to Determine a Fair Use?<\/h2>\n

Copyrights give owners the exclusive legal right to reproduce, publish, sell, or distribute an original creative work or to make a derivative work. However, there are times when you can use the works of others without their permission, it is called a fair use which is a defense against infringement. There are four statutory factors that courts use to determine when unauthorized use of another\u2019s copyrighted material is a fair use:<\/p>\n