Joel Wachs, the president of the Andy Warhol Foundation for the Visual Arts, has now commented on the Foundation's lawsuit again the photographer Lynn Goldsmith. Artnet is quoting Mr. Wachs as saying, "The Foundation has long been an outspoken advocate for artistic freedom of expression... As a steward of Warhol’s legacy, the Foundation has chosen not to allow itself to be extorted by Lynn Goldsmith’s frivolous claims, which would limit artists’ ability to express themselves freely.” (Eileen Kinsella, "Prince Photographer Fires Back at Warhol Foundation Copyright Suit," Artnet News, April 13, 2017)
In the same article Goldsmith is quoted as describing the case as: “The ‘Big Guys’ picking on the ‘Little Guys’ ” and said “I believe artists have to stand up for their rights.”
It's a bit difficult to think of Goldsmith as one of the "little guys." As the CV on her website notes, "Her work over the past 50 years in the editorial world has appeared on and between the covers of Life, Newsweek, Time, Vanity Fair, Rolling Stone, National Geographic Traveler, Sports Illustrated, People, Elle, Interview, The New Yorker, etc." and "Thirteen books of Lynn’s imagery have been published. One of which, New Kids, was on The New York Times Best Seller list."
A "little guy" is more likely to be a young, struggling artist who would like to appropriate "found" material but is afraid to do so because a "biggie" photographer might sue them for using the material. Goldsmith is a profit-making entity. She is CEO of Lynn Goldsmith Ltd. The Andy Warhol Foundation is a not-for-profit entity that gives grants to institutions such as Spaces in Cleveland in order to support new art and new artists. The Foundation's board includes the photographers Shana Berger and Catherine Opie and the artist Deborah Kass.
The Warhol Foundation is arguing that Warhol's use of Goldsmith's Prince photograph is "fair use" of copyright material.
U.S. Code, Title 17, Chapter 1, § 107 notes that "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
The Foundation satisfies the first factor because they are not-for-profit. In regard to items 2 and 3, the Complaint gives at least ten ways that Warhol transformed the photograph. (Although not part of the Complaint, his signature, alone, would considerably change the meaning of the photograph.) In regard to item 4, an art collector purchasing Warhol's painting is interested in purchasing it because it is a Warhol. It is unlikely they would, instead, be willing to purchase a photograph of Prince. People buy "Warhols" because they are by Warhol. A "Goldsmith" is not a "Warhol."
Although Goldsmith has said she is going to file a counter-claim, she has not done so yet. The Foundation is asking for legal fees and costs. I have no idea of how much that will be, but the Foundation's law firm has probably already spent a considerable amount of time researching Warhol's work to provide their analysis that appears in their Complaint and even expenses like photocopying can be considerable in legal cases. It's possible that the fees and costs could already be in the tens of thousands of dollars.
14 April 2017