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Robert J. Bernstein and Robert W. Clarida Robert J. Bernstein and Robert W. Clarida

On July 1, 2019, the U.S. District Court for the Southern District of New York, in an Opinion and Order by Judge John J. Koetl, held that a series of silkscreen paintings and prints by Andy Warhol based on a photograph of the rock star Prince taken by Lynn Goldsmith constituted a transformative and fair use. The Andy Warhol Foundation for the Visual Arts v. Goldsmith, 382 F. Supp. 3d 312 (S.D.N.Y. 2019) (Warhol Foundation). In so holding, Judge Koetl relied on a 2013 Second Circuit decision holding that an “appropriation artist,” Richard Prince (no relation to the rock star), made a transformative and fair use of photographs taken by Patrick Cariou. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (Cariou). Cariou has been criticized for its characterization of the changes made by Richard Prince as transformative, a criticism that Goldsmith no doubt will be making in her pending appeal of Judge Koetl’s decision.

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