When you think of Andy Warhol, you probably think of his treatment of celebrity photographs. Think Marilyn Monroe or Farrah Fawcett — you can probably picture Warhol’s work in your head. A line or double line of photos, brightly colored with artistic silk-screening.
In at least some cases, the original photo was not taken by Warhol. When Warhol did his magic on a photo of Prince in 1984, for example, the photo was taken by photographer Lynn Goldsmith.
We know that because the Warhol estate recently sued Goldsmith, seeking a declaratory judgment that Warhol’s “Prince” series did not violate Goldsmith’s copyright. The estate wanted a court to affirm that what Warhol had done to Goldsmith’s photo was “fair use.”
When Warhol was sued by a different photographer in 1964, the standard for what is considered fair use was stricter than it is today. In that suit, photographer Patricia Caulfield showed that Warhol had used her photograph as source material in his series “Flowers.” A court awarded her $6,000, future royalties and two prints of the work.
The Copyright Act of 1976, however, changed the definition of fair use. Under that law, it is considered fair to use an existing work as long as it has been transformed from the original.
What counts as fair use of a copyright?
Fair use, according to the U.S. Copyright Office, allows the unlicensed use of copyrighted work under certain circumstances. In other words, there are some situations where using copyrighted work without permission will be allowed. Common examples of fair use include using a selection of the work for criticism, news reporting, teaching or scholarship.
There is no set formula for determining whether something is a fair use. The courts make this determination on a case-by-case basis. However, they typically take four main factors into account:
- The purpose and character of the use, including whether it was for commercial purposes and whether the new work was “transformative” (A transformative use is one that adds something new to the original work, changing its character or furthering a new purpose as opposed to substituting for the original work.)
- The nature of the work used, such as whether it was published or unpublished and whether it was creative or factual
- The proportion of the work used in relation to the whole — use of an entire work is less likely to be considered fair than use of a small portion of the work; selections constituting the “heart” of the work are less likely to be considered fair use
- The effect upon the original work’s potential value — does the use harm the existing or future market for the underlying work?
It’s not copyright infringement if an artist ‘transforms’ the original
It was consideration of the transformative power of Warhol’s treatment of photographs that led the federal judge to rule for the Warhol estate in regard to the “Prince” series.
“The humanity Prince embodies in Goldsmith’s photograph is gone. Moreover, each Prince series work is immediately recognizable as a ‘Warhol’ rather than as a photograph of Prince — in the same way that Warhol’s famous representations of Marilyn Monroe and Mao are recognizable as ‘Warhols,’ not as realistic photographs of those persons,” wrote the judge.
Lynn Goldsmith plans to appeal the ruling in the hope of reining in the definition of fair use, which her lawyer says, “continues the gradual erosion of photographers’ rights in favor of famous artists who affix their names to what would otherwise be a derivative work of the photographer and claim fair use by making cosmetic changes.”