Andy Warhol and his portraits of Prince infringe copyright  

According to NY Court of Appeals for the Second Circuit, the famous series of iconic portraits of Andy Warhol depicting Prince and inspired by the photograph taken in 1981 by Lynn Goldsmith infringes the copyright of the original photo.

The judgment of March 26, 2021 overturned the decision of first instance which in 2019 had instead expressed itself in favour of the Andy Warhol Foundation recognizing “the transformative use” in the portraits in commentary, which existence is necessary to not consider the derivative work a mere reproduction of the original work.

In particular, the Court of First Instance had found that Warhol’s works had substantially changed Goldsmith’s original photograph, revisiting the photographic portrait from a pop point of view “turning Prince into an icon and adding something new to the art world”.

One should not forget that in the US the institution of the so-called fair use allows the use of copyrighted material under certain conditions, without the permission of the copyright holder, for the purposes of criticism, comment, information, teaching, education or research.

On appeal, the US Court instead found a copyright infringement by Warhol on the basis of a clear similarity between the works of the “Prince Series” and the photograph in question – since the essential elements of the photograph were taken without being significantly modified – so as not to find any transformative use of the same. Furthermore, in the same judgment, the Federal Court of Appeal states that“Not any secondary work that adds a new aesthetic or new expression to its original source can be considered transformativeso that “the transformative or non-transformative character of a work cannot be based solely on the perceived or declared intent of the artist, or the impression of criticism – or as far as it matters, that of the judge – on the work. Because in such a case, any alteration of a work would end up being a transformation”.

The US Court starts from a – only apparently – simple assumption: in order to not infringe the copyright of the “original” work, it is necessary that the derivative work be substantially different and new – in character and purpose – than that from which it derives inspiration.

Well, in the present case, the considerable similarity between the works of the “Prince Series” and Goldsmith’s photograph, according to the interpretation of the US Federal Court, Andy Warhol’s famous series of sixteen silkscreen prints cannot be regarded as fair use of photographic work and, therefore, constitutes a copyright infringement.