Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith

• Decision Date: 01 July 2019
• Docket Number: 17-cv-2532 (JGK)
• Citation: 382 F.Supp.3d 312
• Parties: The ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., Plaintiff, v. Lynn GOLDSMITH et al., Defendants.
• Court: U.S. District Court — Southern District of New York

382 F.Supp.3d 312

The ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., Plaintiff,

v.Lynn GOLDSMITH et al., Defendants.

17-cv-2532 (JGK)

United States District Court, S.D. New York.

Signed July 1, 2019

Daniel Rickert Koffmann, Maaren Alia Shah, Luke William Nikas, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, for Plaintiff.

Barry Werbin, Gabrielle Casal Wilson, Herrick, Feinstein LLP, Joel Lawrence Hecker, Law Offices of Joel L. Hecker, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

This case raises the question of whether Andy Warhol's use of a photograph of an iconic singer as the basis for a series of artworks is protected as fair use.

More particularly, the Andy Warhol Foundation for the Visual Arts, Inc. ("AWF"), seeks a declaratory judgment declaring that works created by Andy Warhol based on a photograph of Prince Rogers Nelson, best known as "Prince," taken by photographer Lynn Goldsmith do not constitute violations of the Copyright Act.¹ Goldsmith has filed a counterclaim against AWF claiming that the Warhol works do constitute copyright infringement. AWF moves for summary judgment granting its request for a declaratory judgment and dismissing Goldsmith's counterclaim; Goldsmith moves for summary judgment denying AWF's request for a declaratory judgment and holding that AWF infringed her copyright. For the reasons discussed below, AWF's motion is granted and Goldsmith's motion is denied .

I.

The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) ; see also Scotto v. Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998). When there are cross motions for summary judgment, the Court must assess each of the motions and determine whether either party is entitled to judgment as a matter of law. Admiral Indem. Co. v. Travelers Cas. & Sur. Co. of Am., 881 F. Supp. 2d 570, 574 (S.D.N.Y. 2012).

II.

The following facts are undisputed unless otherwise noted.

A.

Lynn Goldsmith is a photographer who has photographed numerous rock, jazz, and R&B performers. AWF's 56.1 Stmt. ¶¶ 37–38. Goldsmith's work centers on helping others formulate their identities, which she aims to capture and reveal through her photography. Id. ¶¶ 41, 43. To expose and capture her subjects' "true selves," Goldsmith employs several interpersonal techniques to establish rapport with her subjects, as well as several photographic techniques with respect to lighting, camera position, and other elements. See id. ¶¶ 44–63.

Andy Warhol, an "art-world colossus" who lived between 1928 and 1987, was an artist who contributed significantly to contemporary art across a variety of media. AWF's 56.1 Stmt. ¶¶ 1–2; Goldsmith's 56.1 Stmt. ¶¶ 71, 154. Warhol's contemporary art brand has remained powerful. AWF's 56.1 Stmt. ¶ 1. AWF is a New York not-for-profit corporation that was formed in 1987 after Warhol's death and in accordance with his will. Goldsmith's 56.1 Stmt. ¶¶ 4, 72. It was created for the purpose of advancing visual art, "particularly work that is experimental, under-recognized, or challenging in nature." AWF's 56.1 Counter Stmt. ¶ 238. AWF controls Warhol images and licenses them to fund its programs. Goldsmith's 56.1 Stmt. ¶ 5.

On December 2, 1981, Goldsmith photographed Prince in concert at the Palladium in New York City. AWF's 56.1 Stmt. ¶ 68. The next day, she photographed him in her New York City studio on assignment from Newsweek Magazine. Id. ¶¶ 69–70. Prince arrived at the studio wearing makeup, and Goldsmith applied more makeup "to connect with Prince physically and in recognition of her feeling [that] Prince was in touch with the female part of himself" while also being "very much male." Id. ¶ 76 (quotation marks omitted, alteration in original). Prince was photographed in his own clothes, except for a black sash that he picked from Goldsmith's clothing room and wore around his neck. Id. ¶¶ 78–79, 81. Goldsmith chose the photographic equipment she used for the shoot. Id. ¶ 83. She also decided to use a plain white background and lit the shoot in a way that emphasized Prince's "chiseled bone structure." Id. ¶¶ 82, 84–85. Goldsmith first shot black and white photographs and then switched to color film. Goldsmith's 56.1 Stmt. ¶ 28.

Shortly after the shoot began – and after Goldsmith had taken approximately eleven photographs of Prince – Prince retreated to the studio's makeup room. AWF's 56.1 Stmt. ¶¶ 88–89. Goldsmith testified that Prince was "really uncomfortable" during the shoot. Id. ¶ 87. Prince remained in the makeup room for a while and then, following an exchange with Goldsmith in which she said he could leave if he wanted, he left the studio. Id. ¶ 88. According to Goldsmith, the photographs from her shoot with Prince show that he is "not a comfortable person" and that he is a "vulnerable human being." Id. ¶ 90. Newsweek published one of Goldsmith's photographs of Prince in concert a few weeks after the shoot but did not publish any photographs from the shoot in her studio. Id. ¶¶ 94–95.

In October 1984, Vanity Fair – which was at the time and is still owned by Condé Nast, Goldsmith's 56.1 Stmt. ¶ 91 – licensed one of Goldsmith's black-and-white studio portraits of Prince from her December 3, 1981 shoot (the "Goldsmith Prince Photograph") for $400. AWF's 56.1 Stmt. ¶ 97; Goldsmith's 56.1 Stmt. ¶ 40. The Goldsmith Prince Photograph was licensed "for use as an artist's reference in connection with an article to be published in Vanity Fair Magazine." Goldsmith's 56.1 Stmt. ¶ 40. The invoice did not specify which photograph from the shoot was licensed and did not mention Andy Warhol. Id. ¶ 102; Goldsmith's 56.1 Counter Stmt. ¶ 105. Goldsmith's photography agency, through its staff, submitted the Goldsmith Prince Photograph to Vanity Fair; Goldsmith herself did not know at the time that the photograph had been licensed for use as an artist's reference. Goldsmith's 56.1 Stmt. ¶ 47.

Vanity Fair commissioned Warhol to create an illustration of Prince for an article titled "Purple Fame," which was to be published in the November 1984 issue of its magazine. Id. ¶¶ 48–49. Warhol created a full-color illustration of Prince that ultimately appeared in the "Purple Fame" article and in the magazine's table of contents. Id. ¶¶ 49, 53. The article stated that it featured "a special portrait for Vanity Fair by ANDY WARHOL." Id. ¶ 49. The article contained a copyright attribution credit for the portrait as follows: "source photograph © 1984 by Lynn Goldsmith/LGI." Id. ¶ 51. Condé Nast's representative stated that the reference to "source photograph" meant the "underlying image that was used to create the artwork." Id. ¶ 52.

The "Purple Fame" article and accompanying Warhol illustration of Prince.

Based on the Goldsmith Prince Photograph, Warhol created the "Prince Series," comprised of sixteen distinct works – including the one used in Vanity Fair magazine – depicting Prince's head and a small portion of his neckline. Id. ¶¶ 57, 60; AWF's 56.1 Stmt. ¶ 112. Twelve of the works are silkscreen paintings, two are screen prints on paper, and two are drawings. AWF's 56.1 Stmt. ¶ 112. Goldsmith alleges that Warhol copied the Goldsmith Prince Photograph at some point during his process of creating the Prince Series; AWF does not concede this point and instead states equivocally that "[t]here is no evidence that [Warhol] was given the photograph itself" but, "somehow," Warhol created the Prince Series. See Goldsmith's Br. at 10–11; AWF's Br. at 18. However, AWF fact witness Neil Printz testified that "typically" the Warhol silkscreen paintings and prints were "based on a photograph" and "[t]ypically for Warhol, since he worked with photographs, he would have his silkscreen printer create a high contrast half tone silkscreen from a photograph." Goldsmith's 56.1 Stmt. at ¶ 66; AWF's 56.1 Counter Stmt. ¶ 66.

The sixteen Prince Series works.

After Warhol died in 1987, AWF obtained...