A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, reversed Judge Koeltl’s ruling.
“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue,” Judge Gerard E. Lynch wrote for the panel. “That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”
The judge’s task, Judge Lynch wrote, is to assess whether the later work “remains both recognizably deriving from, and retaining the essential elements of, its source material.” Warhol’s Prince series, Judge Lynch wrote, “retains the essential elements of the Goldsmith photograph without significantly adding to or altering those elements.”
It was irrelevant that the new images were instantly recognizable as Warhols, Judge Lynch wrote.
“Entertaining that logic would inevitably create a celebrity-plagiarist privilege; the more established the artist and the more distinct that artist’s style, the greater leeway that artist would have to pilfer the creative labors of others,” he wrote.
Lawyers for the Warhol Foundation told the Supreme Court that his Prince series transformed Ms. Goldsmith’s photographs by “commenting on celebrity and consumerism.”
The Second Circuit’s approach, they wrote, “will chill artistic expression and undermine First Amendment values,” “threatens a sea change in the law of copyright” and “casts a cloud of legal uncertainty over an entire genre of visual art.”
Lawyers for Ms. Goldsmith wrote that “Warhol’s silk-screens shared the same purpose as Goldsmith’s copyrighted photograph and retained essential artistic elements of Goldsmith’s photograph.”