Williams & Connolly Client Prevails in Second Circuit Copyright Case

March 2021

Williams & Connolly represented Lynn Goldsmith in her successful appeal to the U.S. Court of Appeals for the Second Circuit, which held in a unanimous opinion that the Andy Warhol Foundation for the Visual Arts, Inc. (the “Foundation”) could not claim a fair use defense for using her photograph without her permission.
Our client Lynn Goldsmith is a world-renowned artist known particularly for her commercial, editorial, and fine art photography, including her portraits of entertainment celebrities.  In 1981, she made a black-and-white studio portrait of the rock musician Prince. Later, artist Andy Warhol created a series of silkscreens and drawings (“Prince Series”) that copied Ms. Goldsmith’s photograph. After Ms. Goldsmith informed the Foundation that its licensing of Prince Series works violated her copyright, the Foundation sued her in New York federal court for a declaratory judgment of fair use. Goldsmith then brought a counterclaim for infringement.
The Second Circuit on March 26 reversed the decision of the district court, which had granted summary judgment for the Foundation on fair use grounds. Ms. Goldsmith retained Williams & Connolly to handle the appeal. Thomas Hentoff presented oral argument on September 15, 2020.  The Second Circuit held that the district court erred in its assessment of the fair use factors and that the Foundation’s licensing of the Prince Series works is not fair use as a matter of law. The Second Circuit also held that Warhol’s Prince Series is substantially similar to Ms. Goldsmith’s photograph as a matter of law. 
Ms. Goldsmith said: "I'm grateful for the court of appeals' decision. Four years ago, the Andy Warhol Foundation sued me to obtain a ruling that it could use my photograph without asking my permission or paying me anything for my work. I fought this suit to protect not only my own rights, but the rights of all  visual artists, especially photographers, to make a living by licensing their creative work—and also to decide when, how, and even whether to exploit their creative works or license others to do so."
The team representing Ms. Goldsmith includes Thomas HentoffLisa Blatt, and Katherine Moran Meeks.

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