Chicago Business Litigation Lawyer Blog
The debate over what separates inspiration from copying is as old as art itself. Creative professionals of all kinds are constantly taking themes and elements from others’ works to use them in their own creations. But when do they cross the line from borrowing themes and elements to outright copying someone else’s work? That line isn’t always easy to define, and the recent Supreme Court ruling against the estate of Andy Warhol has just made the line blurrier.
If you’re unfamiliar with the case, Lynn Goldsmith sued the Andy Warhol Foundation for allegedly infringing on her copyright.
Goldsmith is a photographer who took the photo of Prince that Warhol used to create his Prince series. Goldsmith licensed the photograph to Vanity Fair, which hired Warhol to create a silkscreen based on the photo. The licensing agreement they had with Goldsmith allowed them to use her photo as reference for an illustration. The terms of the agreement stated that the photo would be used only once for an artistic illustration.
Goldsmith assumed the purple silkscreen portrait of Prince used in Vanity Fair’s November 1984 issue was the only illustration created from her photo. Then Vanity Fair’s parent company, Condé Nast, approached the Andy Warhol Foundation about reusing the purple silkscreen of Prince in 2016 for an article about the musician after his death. That was when the magazine company realized there was a whole series of Prince paintings. They offered to buy the Orange Prince instead, which is when Goldsmith realized there were other artworks based off her photo, which she alleges violated her agreement with Vanity Fair.
She sued the Andy Warhol Foundation, and a legal debate ensued around whether Warhol’s use of her photo counted as fair use (i.e. using it for inspiration) or whether he was just copying her work. The case went back and forth in the courts until it reached the Supreme Court, which ultimately ruled in Goldsmith’s favor. According to the court, the paintings Warhol created using her photograph were not sufficiently different from the photograph to count as fair use.
The ruling has rocked the art world, and it has many legal professionals wondering which other artists can expect to get sued for creating work based off someone else’s work.
A prominent example is the work of artist Richard Prince, who takes photographs from Instagram, prints them on canvas, and sells them as unique pieces of art. Two photographers have filed two separate lawsuits against Prince for allegedly violating their copyright.
Prince already defeated one copyright lawsuit several years ago when photographer Patrick Cariou sued him for using his photographs in artwork Prince displayed at a show at the Gagosian Gallery. The judge in that case ruled in Prince’s favor, but whether Prince will be as successful in defeating the current copyright lawsuits filed against him remains unclear.
Although the recent Supreme Court decision against the Andy Warhol Foundation could certainly set a precedent that does not bode well for Prince, not all legal experts agree that his case is doomed.
That being said, Prince did file to have both lawsuits dismissed, and the judge denied that motion, allowing both lawsuits to proceed in the court system. This could be similar to the Warhol case in that it works its way up to through the court system until the Supreme Court has to decide whether to issue a final ruling or let the ruling of a lower court stand.
At Lubin Austermuehle we can help fight those infringing on your trademarks, whether it’s Whether it’s counterfeiting, infringement in paid search ads, search engine spam, or cybersquatting, we can take rapid, decisive action on your behalf. Whether you’re in Naperville, Lincolnwood, Libertyville or anywhere else in the Chicagoland area, let us use our years of trademark litigation experience to earn a victory for you. Call today and arrange a FREE consultation where we can discuss your legal needs and our ability to meet (and exceed) them. Call (630) 333-0333 or contact us via our website by clicking here. We look forward to speaking with you.