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The Andy Warhol Foundation filed a lawsuit earlier this month to preempt a lawsuit from photographer Lynn Goldsmith over her portrait photo of the late pop star Prince, which Andy Warhol turned into a series of 16 prints in 1984. The Foundation is calling for the court to declare the Prince prints “transformative works protected by fair use” and to dismiss Goldsmith’s claims of copyright infringement due to the three-year statute of limitations of the Copyright Act.
Goldsmith’s “effort to shake down the Foundation with its time-barred and meritless infringement claim is apparently part of [her] campaign to profit from Prince Rogers Nelson’s tragic death,” reads the Foundation’s complaint, which Courthouse News first made available online. The lawsuit lists, in great detail, the differences between Goldsmith’s photo and Warhol’s prints, pointing to changes in color, depth, cropping, and more as evidence of transformative use.
Goldsmith, a New York–based artist and photographer, explained in a Facebook post that she only learned of the Warhol series’ existence following Prince’s death last year. She claims that she licensed her photograph — which the Warhol Foundation characterized as a publicity image in its lawsuit, but which she actually short for Newsweek — to Vanity Fair for a one-time use by an artist as a reference, and that the resulting Warhol image spawned the eventual series of prints.
Andy Warhol, “Prince,” ca. 1984, ©AWF pic.twitter.com/FRekU7zp2T
— The Andy Warhol Museum (@TheWarholMuseum) April 21, 2016
“The Warhol usage stems from a request which Vanity Fair made in 1984 to use a black and white image of Prince for an artist reference to create an illustration, with payment as well as the credit to me as the photographer. They never said the artist was Andy Warhol,” Goldsmith wrote. “The image was licensed in 1984 as reference material for one time use in the print version of Vanity Fair for an artist to refer to in the creation of an illustration. The photograph supplied was a black and white of Prince from a studio photo shoot that I did on assignment for Newsweek in 1981.”
Goldsmith writes that as recently as April 7 she had been in talks with the Foundation to negotiate a settlement over the Prince works. She added: “In fact, Warhol’s legal fees to bring this suit probably already exceed what the parties would have agreed to in a settlement.” She plans to pursue her copyright infringement case.
Last year, the photographer accused the Smithsonian Institution of violating her copyright on another Prince portrait by distributing images of it to the press after it was hung at the National Portrait Gallery in tribute to the just-deceased musician.
Though such preemptive lawsuits over copyright claims are rare in visual art, filing one famously backfired for musicians Pharrell Williams and Robin Thicke, who eventually lost a legal battle with Marvin Gaye’s family over the hit song “Blurred Lines” (a decision they appealed). Where art is concerned, preemptive lawsuits are more common in restitution cases.