Big Fair Use Win Concerning Andy Warhol's Paintings Of Prince

A decade ago, you may recall, there was a big copyright fight concerning the iconic "Hope" poster that artist Shepard Fairey had created for the Obama campaign. The Associated Press realized that Fairey had used one of its photos as the "model" for making the poster, and started demanding money (there was also a side issue where the actual photographer kept changing his story, first claiming he was thrilled that Fairey had used it, then arguing that the copyright on the photo was his and not the AP's, and then getting angry at Fairey). Eventually Fairey filed for declaratory judgment of non-infringement, against the AP, arguing that his use was covered by fair use. We argued at the time that he had a very strong case. However, Fairey poisoned his own position in the lawsuit by stupidly first (falsely) claiming he had used a different photograph as the basis for his poster and then destroying evidence about which photo he had used. That's bad. Really bad. So, it wasn't a huge surprise to see Fairey eventually agree to just settle the lawsuit, rather than fight for the fair use ruling, since the case was so muddied by his own early actions.

But, for those of us who value fair use, this was disappointing, because it would have been nice to have had a clear fair use ruling in that case.

However, now, a decade later, we do have a ruling in a case that has some similarities to the Fairey/Obama/Hope/AP case, though, oddly, on photographs and paintings that are much older. And this one also involves two incredibly well-known figures: the artist Andy Warhol and the musician Prince. There's a fair bit of background to this story, so stick with me, but the short version is that a photographer, Lynn Goldsmith, took a bunch of photos of Prince in 1981. In 1984, Vanity Fair magazine (owned by Conde Nast) licensed Goldsmith's photographs for an article the magazine was doing about Prince. The magazine then commissioned Warhol to do a painting of Prince based on Goldsmith's photographs. That resulted in this 1984 spread:

Apparently Warhol actually created a bunch of paintings based on Goldsmith's photographs, most of which have been sold, and a few of which are now in the Warhol museum. You can see all the images in the original complaint in this case.

After Prince died, Vanity Fair reran its article, and then teamed up with some other Conde Nast publications, and put out a special magazine called "The Genius of Prince" using one of Warhol's other portraits.

There was some procedural oddness in all of this -- because Goldsmith claims that she knew about none of this until after that "The Genius of Prince" magazine came out (even though she had licensed a photograph to Vanity Fair, it appears that there was some confusion about that, and at least Goldsmith claims she was never aware of the Warhol portrait based on her photograph back in the 1980s). Goldsmith contacted the Andy Warhol Foundation about the portrait, arguing that it was infringement. The Foundation then filed for declaratory judgment against Goldsmith. It made a bunch of arguments, including that the statute of limitations (three years) had run out, but most of the case focused on the 2016 magazine, which made it still well within the statute of limitations.

Either way, the court notes that those other issues don't much matter, because this is an easy fair use call. As the court says, "it is plain that the Prince Series works are protected by fair use."

It runs through the standard four factor test, finding that the first, third and fourth factors all lean towards fair use, and the second factor is merely "neutral." The judge finds them transformative:

In any event, the Prince Series works are transformative, and therefore the import of their (limited) commercial nature is diluted. If "looking at the [works] side-by-side," the secondary work "ha[s] a different character, . . . a new expression, and employ[s] new aesthetics with creative and communicative results distinct" from the original, the secon