The Fine Line Between a Copy and an Original Work of Art

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By Joseph Segar, Staff Writer

The Supreme Court will soon hear Andy Warhol Foundation v. Goldsmith, which focuses on the distinction between a copy of an original work of art that is different enough to constitute a new original and a copy that is simply derivative and infringes on the original’s copyright.[1] This case has the potential to set precedent on how much an artist can copy the work of another without paying for their use of the original work.

Lynn Goldsmith is a professional photographer that was highly sought after by magazines and publications for her photographs of celebrities and musicians during the 80’s Rock n’ Roll era.[2] In 1981, Newsweek magazine commissioned Goldsmith to take a series of pictures of Prince.[3] In 1984, Goldsmith licensed one of those photographs to Vanity Fair magazine to use as an artist reference, a template for an artist to base their work off of.[4] Vanity Fair then commissioned Andy Warhol to create a work of art in his signature style based off of Goldsmith’s original photo.[5] The iconic style used to create the Prince illustration consisted of reproducing the photograph in a high-contrast two-toned image on acetate and transferring that illustration to silkscreen.[6] When the issue was published, Goldsmith received monetary and artistic credit for her contribution to the Warhol piece.[7]

The dispute bringing this case to the Supreme Court arises out of the fact that Andy Warhol continued to make 15 additional works of art based on Goldsmith’s photo without her knowledge.[8] Since Warhol’s passing, the Andy Warhol Foundation (“AWF”) holds copyright to these illustrations which are now potentially worth millions of dollars.[9] When Goldsmith learned that her original photograph was being used by the AWF without her permission, she contacted the foundation alleging infringement of her copyrighted photograph.[10] AWF responded by suing Goldsmith to declare their use of her photograph as fair use under U.S. copyright law.[11]

The United States District Court for the Southern District of New York granted summary judgment to AWF, but the Second Circuit Court of Appeals reversed that decision.[12] The Second Circuit’s analysis primarily revolved around whether Warhol’s copy could be considered transformative or simply derivative of Goldsmith’s original photo. [13] According to the Court, a transformative copy “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”[14] For a copy to be transformative, it needs to be substantially distinguishable from the original work.

The Court also defined “derivative works,” stating that “where a secondary work does not . . . use the original for a purpose other than that for which it was created, the bare assertion of a higher or different artistic use is insufficient to render a work transformative.”[15] In other words, if the copy of the original work conveys the same expression or meaning as the original, it cannot be transformative. The Supreme Court will have to apply this concept of transformative use to determine if Warhol’s illustrations changed the meaning or character of Goldsmith’s photo enough to become an original on its own.

A ruling in favor of AWF will continue the status quo but a ruling in favor of Goldsmith would have far reaching implications. Barbara Kruger and Robert Storr are known influencers in the art community.[16] They jointly filed an amicus curiae brief on behalf of the Warhol Foundation arguing that “artists and content creators, fearing costly litigation, may abstain from using or referencing copyrighted work and thus limiting cultural exchange and discourse.”[17] A ruling in Goldsmith’s favor could potentially limit artists’ ability to use copyrighted media to create new works of art. The parties argued their case before the Court on October 12, 2022.[18] Now, the art community waits in anticipation for a decision to be handed down.[19]



[3] Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021)

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.


[10] Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021)

[11] Id.

[12] Id.

[13] Id.

[14] Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 37 (2d Cir. 2021)

[15] Id. at 41 (2d Cir. 2021)


[17] Id.



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