Photographer Lynn Goldsmith is threatening to sue the Warhol Foundation. The Foundation (not the "estate" as it has sometimes been reported) brought a legal action against Goldsmith to establish the legality of Warhol's use of a publicity photograph of the musical artist, Prince, taken by Goldsmith. Now Goldsmith is threatening to bring a "counter claim for copyright infringement," according to the New York Daily News.
The artist Richard Prince regularly uses other people's photographs in his artwork. He ultimately won the Patrick Cariou case - where the photographer (Cariou) attempted to sue him for copyright infringement over the use of his photographs. One could argue that Richard Prince's alteration or transformation of the Cariou photos was considerably less than the alterations that Warhol made to Goldsmith's photograph. The legal firm that won the Richard Prince case is the same firm that has filed the Complaint against Goldsmith.
The Foundation's complaint clearly shows how the substantially altered photograph of the musical artist, Prince, meets the legal requirements of "fair use" because "the different visual aesthetic of the Prince Series" conveys "a different meaning than the Prince publicity photograph."
Noting that "The Pop Art movement distinguished itself from prior artistic movements by drawing on imagery from contemporary popular culture and media," the Complaint details the considerable alterations made to Goldsmith's photograph by Warhol in his aesthetically complicated Prince Series.
The Complaint also notes that the market for a Warhol painting of Prince does not impinge on Goldsmith's market and that the "Defendants’ potential copyright claims based on the Prince Series are barred by the statute of limitations."
The fact that the Foundation is a not-for-profit entity also helps their case. Goldsmith is the CEO of Lynn Goldsmith Ltd. The Complaint states that Lynn Goldsmith and Lynn Goldsmith Ltd. have "threatened to file litigation if they are not paid a substantial sum of money by The Andy Warhol Foundation for the Visual Arts, Inc. (“The Foundation”), a charitable organization established pursuant to Warhol’s will after his untimely death."
The Complaint also states that Lynn Goldsmith and Lynn Goldsmith Ltd.'s "effort to shake down the Foundation with its time-barred and meritless infringement claim is apparently part of their campaign to profit from Prince Rogers Nelson’s tragic death."
But probably most worrying for Goldsmith is that the Foundation is asking for an award of the cost of their lawsuit and attorney's fees and "all other relief as may be appropriate." The Foundation's lawyers are one of the of most prestigious firms in the U.S. They don't come cheap. If the Court does award fees and costs, it is likely to be a considerable amount of money.