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Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith

Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith

United States Court of Appeals for the Second Circuit

September 15, 2020, Argued; March 26, 2021, Decided

Docket No. 19-2420-cv

Opinion

 [*32]  GERARD E. LYNCH, Circuit Judge:

This case concerns a series of silkscreen prints and pencil illustrations created by the visual artist Andy Warhol based on a 1981 photograph of the musical artist Prince that was taken by Defendant-Appellant Lynn Goldsmith in her studio, and in which she holds copyright. In 1984, Goldsmith's agency, Defendant-Appellant Lynn Goldsmith, Ltd. ("LGL"), then known as Lynn Goldsmith, Inc., licensed [**4]  the photograph to Vanity Fair magazine for use as an artist reference. Unbeknownst to Goldsmith, that artist was Warhol. Also unbeknownst to Goldsmith (and remaining unknown to her until 2016), Warhol did not stop with the image that Vanity Fair had commissioned him to create, but created an additional fifteen works, which together became known as the Prince Series.

Goldsmith first became aware of the Prince Series after Prince's death in 2016. Soon thereafter, she notified Plaintiff-Appellee The Andy Warhol Foundation for the Visual Arts, Inc. ("AWF"), successor to Warhol's copyright in the Prince Series, of the perceived violation of her copyright in the photo. In 2017, AWF sued Goldsmith and LGL for a declaratory judgment that the Prince Series works were non-infringing or, in the alternative, that they made fair use of Goldsmith's photograph. Goldsmith and LGL countersued for infringement. The United States District Court for the Southern District of New York (John G. Koeltl, J.) granted summary judgment to AWF on its assertion of fair use and dismissed Goldsmith and LGL's counterclaim with prejudice.

Goldsmith and LGL contend that the district court erred in its assessment and application [**5]  of the four fair-use factors. In particular, they argue that the district court's conclusion that the Prince Series works are transformative was grounded in a subjective evaluation of the underlying artistic message of the works rather than an objective assessment of their purpose and character. We agree. We further agree that the district court's error in analyzing the first factor was compounded in its analysis of the remaining three factors. We conclude upon our own assessment of the record that all four factors favor Goldsmith and that the Prince Series works are not fair use as a matter of law. We further conclude that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.1

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11 F.4th 26 *; 2021 U.S. App. LEXIS 25277 **; 2021 WL 3742835

THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., Plaintiff-Counter-Defendant-Appellee, — v. — LYNN GOLDSMITH, LYNN GOLDSMITH, LTD., Defendants-Counter-Plaintiffs-Appellants.

Subsequent History:  [**1] Amended: August 24, 2021.

Petition granted by Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 2022 U.S. LEXIS 1695 (U.S., Mar. 28, 2022)

Prior History: Defendants-Appellants Lynn Goldsmith and Lynn Goldsmith, Ltd., appeal from a judgment of the United States District Court for Southern District of New York (Koeltl, J.) granting summary judgment to Plaintiff-Appellee The Andy Warhol Foundation for the Visual Arts, Inc. on its complaint for a declaratory judgment of fair use and dismissing Defendants-Appellants' counterclaim for copyright infringement. We conclude that the district court erred in its assessment and application of the fair-use factors and that the works in question do not qualify as fair use as a matter of law. We likewise conclude that the Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law. We therefore REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion. JUDGE JACOBS concurs in the Court's opinion, and files a concurring opinion.

Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99, 2021 U.S. App. LEXIS 8806, 2021 WL 1148826 (2d Cir. N.Y., Mar. 26, 2021)

CORE TERMS

Photograph, transformative, fair use, artistic, license, secondary, district court, substantially similar, infringement, alterations, derivative work, creative, images, copying, copyrighted work, source material, matter of law, aesthetic, marks, recognizable, quotation, factors, original work, fair-use, derivative, magazine, portrait, cases, film, message

Civil Procedure, Appeals, Standards of Review, De Novo Review, Copyright Law, Civil Infringement Actions, Summary Judgment, Judicial Review, Summary Judgment Review, Standards of Review, Judgments, Entitlement as Matter of Law, Entitlement as Matter of Law, Genuine Disputes, Constitutional Law, Congressional Duties & Powers, Copyright & Patent Clause, Constitutional Copyright Protections, Copyright Clause, Scope of Copyright Protection, Collective & Derivative Works, Derivative Works, Scope of Protection, Infringement, Subject Matter, Statutory Copyright & Fixation, Originality Requirement, Fair Use, Fair Use Determination, Factors, Ownership Rights, Reproductions, Limitations, Governments, Courts, Authority to Adjudicate, Protected Subject Matter, Limited Protection for Factual Works, Literal Forms of Expression, Graphic, Pictorial & Sculptural Works, Photographs, Expression & Idea Distinguished, Defenses, Demurrers & Objections, Affirmative Defenses, Burdens of Proof, Evidence, Burdens of Proof, Allocation, Defenses, General Overview, Materiality of Facts, Trademark Law, Infringement Actions, Artistic Relevance, Legislation, Interpretation, Reviewability of Lower Court Decisions, Preservation for Review, Copying by Defendants, Substantial Similarity, Intrinsic Tests, Ordinary Observer Test, Trials, Jury Trials, Province of Court & Jury