Let’s take this as a hypothetical case. A well known ‘Rock Photographer’ has their work appropriated by a well-known artist. The artist then dies. The artwork is held in deep storage for over 30 years and then surfaces after the high profile death of the subject, a well known ‘Rock Star’ who owns the image?
“Warhol’s works were entirely new creations”- attorney Luke Nikas
In US law, appropriation or the use of someone else’s image in an artwork is allowed, so long as the image isn’t exploited for commercial use. In the case of Shepard Fairey, who licensed his artwork of the Obama Hope poster to Urban Outfitters the artist was in breach of copyright as the image belonged to a well known AP photographer. The case of Richard Prince and the appropriated Instagram images was a no brainer in the US courts as Prince used other people’s images to create original works of art. On the other hand artist Jeff Koons recently lost a similar case in France for using another photographer’s image in a sculpture from his Banal series.
Now the well-known photographer Lynn Goldsmith has publicly complained that works by Any Warhol violate her copyright in the original 1981 photo. In a pre-emptive measure, the pop artist’s estate is suing in an effort to avoid being sued itself, according to a suit filed in a Federal court on Friday. The estate claims it is protecting his legacy from her claim that he copied her photo of Prince.
In 1984, Warhol painted a series of portraits of Prince court papers point out he, “drew inspiration from and transformed a publicity photograph” of the artist that was in circulation at the time some thirty years ago. The series are transformative and protected by fair use and that any potential copyright claims are barred by the statute of limitations and the doctrine of laches.
“Although Warhol often used photographs taken by others as inspiration for his portraits, Warhol’s works were entirely new creations,” writes attorney Luke Nikas in the complaint. “As would be plain to any reasonable observer, each portrait in Warhol’s Prince Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph.”
As one example, which is demonstrated visually in the complaint, Nikas argues that Warhol’s Prince is wearing “substantially heavier” eye makeup than the artist is in the photo.
The estate argues, Goldsmith has known about the series since at least 1984 because she granted a license to Vanity Fair for use of one of the Warhol images on its cover. According to the complaint, though, the photographer has claimed she didn’t learn about the pop art adaptations of her work until Conde Nast published a special issue called The Genius of Prince in 2016 and used the image as its cover.
“Despite knowing that Warhol’s portraits are a protected fair use, Defendants have attempted to extort a settlement from the Foundation,” states Nikas, who also cites Goldsmith’s own Facebook post as proof she was aware. In Jan. 2015 she wrote, “It is a crime that so many ‘artists’ can get away with taking photographers images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place.”