Andy Warhol Foundation for the Visual Arts v. Goldsmith
Andy Warhol Foundation for the Visual Arts v. Goldsmith is a lawsuit brought when both parties sued each other over photographs of the musician Prince that were used in a Vanity Fair article. The Andy Warhol Foundation licensed a photo of him in the ‘80s to use in a silk screen painting. The Foundation believed that it could charge a licensing fee for the picture to be used in the article in 2016 under the “fair use” doctrine in copyright. That doctrine allows part of a copyrighted work to be used if certain criteria are met, including whether the new use is “transformative.” The foundation argues that it is transformative because the silk screen photos created a new message that the original photo by Goldsmith did not have. Goldsmith argues that the use of the Prince silkscreen in the article is different from the use of a song for a parody for example, and more like a decision to take the original work and put it into the marketplace since people were buying the article the photo was used in.
If Goldsmith wins, she would get paid for the use of her photographs, but it would also impact the fair use doctrine going forward: several of the friend of the court briefs in the case, including the government’s brief, point to works deriving from other works to suggest she should win. It would be harder for a book-to-movie derivative work to be made if Goldsmith loses.
The Foundation argues that if they win, it would stifle creativity and bar the fair use of copyrighted works that might have led to a new work with a different meaning or understanding. There are some significant friends of the court briefs on their side, too. The Electronic Frontier Foundation argues that anything from making GIFs to sending email to other forms of online communication could be endangered.