UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THE ANDY WARHOL FOUNDATION FOR THE VISUAL ARTS, INC., Plaintiff, -against- Civil Action: ______ COMPLAINT LYNN GOLDSMITH AND LYNN GOLDSMITH, LTD., Jury Trial Demanded Defendants. Plaintiff The Andy Warhol Foundation for the Visual Arts, Inc., by its attorneys Boies Schiller Flexner LLP, for its Complaint against Defendants Lynn Goldsmith and Lynn Goldsmith Ltd. (collectively, “Defendants”), alleges as follows: NATURE OF THE CASE 1. This is a civil action to protect the works and legacy of Andy Warhol, one of the most celebrated American artists of the 20th Century. 2. Warhol was a leading figure in the Pop Art movement of the 1950s and 1960s. Like many Pop Artists, Warhol challenged the tradition of fine art by creating works about everyday items like Campbell’s soup cans, Brillo pads, and widely circulated images of celebrities. Although Warhol drew inspiration from these everyday items, his works are lauded for transforming and commenting upon them. Because of their transformative nature, Warhol’s works have been displayed in museums, discussed in universities around the world, analyzed by numerous art critics and historians, and viewed by millions of people. 3. In 1984, Warhol used his signature style of celebrity portraiture to create a series of portraits of the musical artist Prince Rogers Nelson, commonly known as “Prince” and, to a 1 lesser extent, as “ ,”” “Camille, “the Artist Formerly F Knnown As Priince,” and “tthe Artist.” Like Warhol’ss other celeb brity portraiits, the Prin nce Series drrew inspirattion from annd transform med a publicity y photograph h of Prince in n circulation at the time. 4. In 19 984, one off Warhol’s Prince P Porttraits was ppublished inn Vanity Faair, a magazinee widely circculated throu ughout the United U Statess. 5. Now, more than n thirty yeears after tthat magazzine article was publiished, Defendan nts, a photog grapher nam med Lynn Goldsmith annd her compaany, are com mplaining foor the first timee that Warho ol’s Prince Series S infringes upon Gooldsmith’s ccopyright onn a photograp aph of Prince th hat she took in 1981. Deefendants claaim that the Prince Seriees copies thee photographh and contains derivative works, in violation of o their coopyright, annd that the works aree not transform mative or oth herwise proteected fair usee. 6. Defen ndants have threatened t to o file litigatiion if they aare not paid a substantiall sum of money y by The Andy A Warho ol Foundatio on for the V Visual Arts, Inc. (“The Foundationn”), a charitable organizatio on establisheed pursuant to t Warhol’s will after hiis untimely ddeath. 7. To protect Warh hol’s legacy y and resoolve Defenddants’ baselless claims, the Foundatiion requests a declaratorry judgmentt that (1) thee portraits inn Warhol’s Prince Seriees do not infrin nge upon Deefendants’ co opyright in th he photograpph, (2) the pportraits are ttransformatiive or are otherrwise proteccted fair usse, and (3) Defendantss’ claims arre barred bby the statuute of limitation ns and the eq quitable docttrine of lach hes. PARTIES 8. The Foundation F is a New York not-foor-profit corrporation thhat maintainns its principall place of bussiness at 65 Bleecker Strreet, New Y York, New Yoork 10012. 2 9. Defendant Lynn Goldsmith, Ltd. is a New York corporation, which, upon information and belief, previously operated under the name Lynn Goldsmith, Inc. Records maintained by the New York Department of State indicate that Lynn Goldsmith, Ltd.’s principal place of business is 40 Sunset Drive, Suite 10A, Basalt, Colorado 81621-8362. 10. Defendant Lynn Goldsmith is a photographer and the Chief Executive Officer of Defendant Lynn Goldsmith, Ltd. Upon information and belief, Goldsmith resides in Colorado. JURISDICTION AND VENUE 11. Because this action arises under the copyright laws of the United States, 17 U.S.C. §§ 101 et seq., this Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338, and the Declaratory Judgment Act, 28 U.S.C. § 2201. 12. The Court has personal jurisdiction over Defendant Lynn Goldsmith, Ltd. because it is a New York corporation. 13. The Court has personal jurisdiction over Lynn Goldsmith because she is the Chief Executive Officer of Lynn Goldsmith, Ltd., a New York corporation. Alternatively, the Court has personal jurisdiction over Lynn Goldsmith because, upon information and belief, she regularly does or solicits business in New York. 14. Venue is proper in this District under 28 U.S.C. § 1391 and 28 U.S.C. § 1400 because a substantial part of the events giving rise to the claims occurred in this District and because, upon information and belief, Defendants may be found in this District and regularly do or solicit business in this District. 3 FACTUAL BACKGROUND I. WARHOL WAS ONE OF THE MOST IMPORTANT ARTISTS OF THE 20TH CENTURY AND A LEADING FIGURE OF THE POP ART MOVEMENT. 15. Born in 1928 and deceased in 1987, Andy Warhol was one of the most influential and celebrated American artists of the 20th Century. After beginning his career in magazine illustration and advertising, Warhol rose to prominence in the fine arts as a leading figure of the Pop Art movement of the 1950s and 1960s. During his prolific career, he produced tens of thousands of works of art. 16. The Pop Art movement distinguished itself from prior artistic movements by drawing on imagery from contemporary popular culture and media. According to the Guggenheim Art Museum, “Pop art explored the image world of popular culture, from which its name derives. Basing their techniques, style, and imagery on certain aspects of reproduction, the media, and consumer society, these artists took inspiration from advertising, pulp magazines, billboards, movies, television, comic strips, and shop windows. These images, presented with (and sometimes transformed by) humor, wit, and irony, can be seen as both a celebration and a critique of popular culture.” II. THE ART WORLD HAS LONG CELEBRATED WARHOL’S SIGNATURE METHOD OF PORTRAITURE. 17. Among Warhol’s most important contributions to the Pop Art canon were his portraits of public figures such as Marilyn Monroe and Mao Zedong. These works, images of which are reproduced below, have been viewed by millions of people and exhibited in museums around the world. 4 Andy Warhol, Marilyn (1962) Acrylic on canvas; 80 7/8 57" Andy Warhol, Mao (1973) Synthetic polymer paint and silkscreen ink on canvas; 176 1/2 x 136 1/2" 6 18. Although these classic works by Warhol were inspired by photographic images of his subjects, his unique method of portraiture invariably altered the visual aesthetic of the original photographic images, as well as the meaning conveyed to the viewer. For example, as curator and art historian Tina Rivers Ryan has observed regarding Marilyn Diptych, “At first glance, the work—which explicitly references a form of Christian painting (see below) in its title—invites us to worship the legendary icon, whose image Warhol plucked from popular culture and immortalized as art. But as in all of Warhol’s early paintings, this image is also a carefully crafted critique of both modern art and contemporary life. . . . Even if we don’t recognize the source (a publicity photo for Monroe’s 1953 film Niagara), we know the image is a photo.” [Image from an essay by Tina Rivers Ryan] 19. Ryan continued to discuss Warhol’s transformation of the photograph, noting, “Warhol’s use of the silkscreen technique further ‘flattens’ the star’s face. By screening broad planes of unmodulated color, the artist removes the gradual shading that creates a sense of threedimensional volume and suspends the actress in an abstract void. Through these choices, Warhol transforms the literal flatness of the paper-thin publicity photo into an emotional ‘flatness,’ and the actress into a kind of automaton. In this way, the painting suggests that ‘Marilyn Monroe,’ a 7 manufacttured star wiith a made-u up name, is merely m a onee-dimensionaal (sex) symbbol—perhapps not the most appropriate object of ou ur almost reliigious devottion.” 20. ugh Warholl often used d photographhs taken by others as innspiration foor his Althou w weree entirely neew creationss. Unlike tthe photogrraphs he useed as portraits,, Warhol’s works inspiratio on, “[m]uch of Andy Warhol’s work k, including work incorpporating apppropriated im mages of Campb bell’s soup cans c or of Marilyn M Monrroe, commennts on consuumer culturee and explorees the relationsh hip between n celebrity cu ulture and ad dvertising.” Cariou v. P Prince, 714 F F.3d 694, 7006 (2d Cir. 2013). In partt for this reeason, Warh hol’s portraitts have beeen analyzed by a signifficant number of o academicss and art crittics. III. IN 1984, WAR RHOL CREA ATED THE PRINCE R SERIEES USING HIS SIGNATURE I METHOD OF PORTRAITU URE. 21. In 198 84, Warhol applied his signature m method of poortraiture to ccreate a seriies of opular musiccian Prince Rogers R Nelsoon, commonnly known ass “Prince” annd, at 16 portraaits of the po times, “ ,” “Camillee, “The Artist Formerly Known As Prince,” andd “The Artisst.” These w works onated by thee Foundation n. For the ppurposes of tthis Complaaint, this seriies of were lateer sold or do portraits will be refeerred to as the “Prince Series.” Im mages of eaach portrait contained iin the played below w. Prince Seeries are disp 8 An ndy Warholl, PO 50.537 7, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Waarhol, PO 50.539, Priince (1984) Synnthetic polym mer paint annd silkscreen ink on ccanvas; 20 x 16" An ndy Warholl, PO 50.538 8, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Waarhol, PO 50.541, Priince (1984) Synnthetic polym mer paint annd silkscreen ink on ccanvas; 20 x 16" 9 An ndy Warholl, PO 50.540 0, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Waarhol, PO 50.543, Priince (1984) Synnthetic polym mer paint annd silkscreen ink on ccanvas; 20 x 16" An ndy Warholl, PO 50.542 2, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Waarhol, PO 50.545, Priince (1984) Synnthetic polym mer paint annd silkscreen ink on ccanvas; 20 x 16" 10 An ndy Warholl, PO 50.544 4, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Waarhol, PO 50.547, Priince (1984) mer paint annd silkscreen Synnthetic polym ink on ccanvas; 20 x 16" An ndy Warholl, PO 50.546 6, Prince (1984) ( Synthetiic polymer paint p and silk kscreen ink i on canvaas; 20 x 16" Andy Warrhol, TOP115.260, Priince (1984) Grraphite on H HMP paper; 331 3/4 x 23 3/4" 11 And dy Warhol, TOP115.25 59, Prince (1984) ( Graphitte on HMP paper; p 31 3/4 4 x 23 3/4 4" Andy Waarhol, PO 550.458 Priince (1984) Synnthetic polym mer paint annd silkscreen ink on ccanvas; 20 x 16" Andy A Warho ol, UP 42.72, Prince (1984) ( Screenprrint on Moulin du Vergerr paper; 29 3/4 x 21 3/4" Andy W Warhol, UP 442.73, Priince (1984) Screeenprint on M Moulin du V Verger paper; 300 x 21 3/4" 12 22. Like many m of Waarhol’s classsic Pop Art portraits, thhese portraitts of Prince were inspired by a publicity photogrraph (hereafter “the Prrince Publiccity Photogrraph”), whiich is reproduced below. 23. Goldssmith claims she took this photo graph in 1981 and thhat she or Lynn ds the copyright to it. Goldsmitth, Ltd. hold 13 IV. THE PRINCE SERIES TRANSFORMS THE AESTHETIC AND MEANING OF THE PRINCE PUBLICITY PHOTOGRAPH. As would be plain to any reasonable observer, each portrait in Warhol’s Prince 24. Series fundamentally transformed the visual aesthetic and meaning of the Prince Publicity Photograph. The portraits in Warhol’s Prince Series differ visually from the Prince Publicity 25. Photograph in the following ways, at a minimum: a. As is the case with many of his portraits, Warhol’s signature use of the silkscreen printing technique in the Prince Series flattens the appearance of the subject’s face by removing the gradual shading in the Prince Publicity Photograph, which creates a sense of threedimensional volume, and replaces it with the use of unmodulated color. b. Each of the portraits in the Prince Series focuses on the subject’s face, whereas the Prince Publicity Photograph is centered at the body of the subject and extends to below the waist. c. Each of the portraits in the Prince Series portrays the subject with something other than his natural skin color, sometimes with unnatural neon colors, whereas the Prince Publicity Photograph does little or nothing to alter the subject’s natural skin color. d. Each of the portraits in the Prince Series, except for UP 42.72, uses the one color (usually black) to depict the subject’s hair, lips, and facial features, whereas the Prince Publicity Photograph uses natural colors (e.g., dark brown for the subject’s hair and red for the subject’s lips). e. Each of the portraits in the Prince Series portrays the subject’s hair as a solid block of color, whereas the subject’s strands of hair are plainly visible in the Prince Publicity Photograph. 14 f. The makeup m arou und the subjeect’s eyes inn Warhol’s P Prince Seriees is substanntially heavier th han the mak keup around the subject’ss eyes in thee Prince Publicity Photoggraph. g. The angle a of the subject’s facce in the Prrince Series differs from m the angle oof the subject’s face in thee Prince Pu ublicity Phottograph, as demonstrateed by a com mparison of lines connectin ng the subjecct’s tear duccts and lines across the suubject’s chinn in the diffeerent works. 15 h. Many y lines that appear a on the subject’s fface in the P Prince Publiicity Photoggraph, g the lines un nderneath th he subject’s eyes, the linnes in the subbject’s forehhead, and thee line including on the rig ght side of th he subject’s nose, are om mitted from eeach of the P Prince Seriess. 16 i. The liight reflected on the sub bject’s face in the Princce Publicity Photograph does not appeaar in any of the t portraits in the Princce Series. j. Many y of the portrraits in the Prince P Seriees have a coolored screenn of the subjject’s head thatt is set off neext to anotheer outline off the subject’’s head. Forr example, A Andy Warhool, UP 42.73, deepicts the subject’s heaad in black and white and an offsset outline oof the headd in a different color. Warh hol himself drew d this disstinct form bby hand and then screeneed his drawiing as he works in the t Prince Seeries. part of th 26. Thesee are just so ome of the many readdily observabble differennces betweenn the Prince Series and thee Prince Pub blicity Photo ograph, the ccumulative eeffect of whhich is to givve the Prince Seeries an entirely differen nt visual aestthetic from tthe Prince Puublicity Phootograph. 27. The different d vissual aesthettic of the P Prince Seriees also mayy reasonablly be perceived d to convey y a differentt meaning th han the Prinnce Publicityy Photograpph. Whereaas the Prince Pu ublicity Pho otograph is a straightforw ward picture of the subjeect with makkeup and lighhting, 17 the Prince Series, like many of Warhol’s signature portraits, may reasonably be perceived as simultaneously honoring the celebrity of Prince while also conveying that Prince (like Marilyn Monroe and many other subjects of Warhol’s works) is a manufactured star with a stage name, whom society has reduced to a commodity. V. THE PRINCE SERIES DID NOT USURP THE MARKET OF THE PRINCE PUBLICITY PHOTOGRAPH. 28. Goldsmith is a photographer. 29. Upon information and belief, as of the date of this Complaint, Defendants’ business does not involve developing, or licensing others to develop for them, works resembling the Prince Series, except for Defendants’ assertion that the Prince Publicity Photograph resembles the Prince Series. 30. Upon information and belief, as of the date of this Complaint, Defendants have not painted, screen printed, or drawn works of art that resemble the Prince Series and that Defendants made available for sale or public exhibition. 31. Upon information and belief, as of the date of this Complaint, Defendants have not licensed others to paint, screen print, or draw works of art for them that resemble the Prince Series and that Defendants made available for sale or public exhibition, except for Defendants’ assertion that the Prince Publicity Photograph resembles the Prince Series. 32. Upon information and belief, Warhol’s Prince Series and Defendants’ Prince Publicity Photograph do not target the same audiences. 33. Upon information and belief, Warhol’s Prince Series and Defendants’ Prince Publicity Photograph do not target the same art collectors. 34. Upon information and belief, Warhol’s Prince Series and Defendants’ Prince Publicity Photograph do not target the same commercial markets. 18 35. Upon information n and belief, f, Warhol’s P Prince Seriees contains w works of finne art that are primarily p solld to collecto ors of high-eend Pop Art. 36. Upon information n and belieff, the Princee Publicity Photograph is not prim marily sold to co ollectors of high-end h Pop p Art. 37. Upon information n and belief,, Warhol’s P Prince Seriees has not deecreased dem mand among arrt collectors or the comm mercial art market m for Deefendants’ P Prince Publiccity Photograaph. VI. GOLDSMITH HAS KNOWN OR SHOUL LD HAVE KN NOWN ABOU UT WARHOL’S PRINCE SERIIES FOR AT LEAST THREEE DECADESS. 38. In 198 84, Goldsmiith and Lynn n Goldsmith Inc. (the appparent corpoorate predeccessor ndant Lynn Goldsmith G Ltd.) L issued a written liccense to Vannity Fair maagazine for uusing to Defen the Princce Publicity Photograph P in exchangee for a fee. T The license sstated as folllows: nd correct co opy of this liccense is attaached hereto as Exhibit A A. A true an 39. Upon information n and belieff, Warhol ddid not enteer into any agreements with F concerniing the Princce Publicity Photographh or the Prinnce Series that limited hiis use Vanity Fair of the Prrince Publicity Photograp ph or impactted his rightss in the Prinnce Series. 40. ol did not en nter into any y agreementss with Defenndants conceerning the P Prince Warho Publicity y Photograph h or the Prin nce Series that limited hiis use of the Prince Publlicity Photoggraph or impacted his rightts in the Prin nce Series. 41. In or around No ovember 198 84, Vanity F Fair magazzine publishhed an articlle by Tristan Vox V titled “P Purple Famee: An Apprecciation of Prrince at the Height of H His Powers.” The Article was w printed on o page 66 of the Noveember 1984 issue of Vaanity Fair. One of Warrhol’s Prince po ortraits was displayed on n Page 67 off the same is sue. 19 42. Copies of the November 1984 Vanity Fair were circulated throughout the nation and widely available for purchase by anyone. 43. A true and correct copy of pages 66 and 67 of the November 1984 issue of Vanity Fair Article is reproduced below. 44. Upon the publication of the November 1984 issue of Vanity Fair, Defendants knew or should have known about Warhol’s Prince Series. Any reasonable person in Defendants’ position would have reviewed the November 1984 issue of Vanity Fair, if only to confirm that Vanity Fair had complied with the license terms described above. 20 45. Since the publication of the November 1984 Vanity Fair article, portraits in the Prince Series have been displayed in museums, books, and exhibits around the world. For example: a. In 1993, PO 50.458 and PO 50.539 were part of the exhibition Andy Warhol: Portraits of the Seventies and Eighties at the Museum of Contemporary Art in Sydney, Australia and in the Anthony d’Offay Gallery in London, England. b. PO 50.458 and PO 50.539 appeared in Andy Warhol Portraits by Henry Geldzahler and Robert Rosenblum, which was published in 1993 by Thames and Hudson Ltd. c. PO 50.547 appeared in Andy Warhol Portraits by Tony Shafrazi, which was published by Phaidon in 2007. d. UP 42.72 and UP 42.73 appeared in Andy Warhol Prints: A Catalogue Raisonne 1962 – 1987 by Frayda Feldman and Jörg Schellmann, the fourth edition of which was published in 2003 by D.A.P. e. In 2005, PO 50.547 was exhibited at Tony Shafrazi Gallery in NYC. f. PO 50.544 and PO 50.547 appeared in Warhol Live by Stephane Aquin, which was published in 2008 by Prestel Publishing. g. PO 50.547 appeared in Andy Warhol Treasures by Matt Wrbican and Geralyn Huxley, which was published in 2009 by Carlton Books. h. As part of the touring Warhol Live exhibition in 2009 through 2011, PO 50.544 and PO 50.547 were exhibited at The Montreal Museum of Fine Arts in Montreal, Canada; Andy Warhol Museum in Pittsburgh, PA; The Frist Center for the Visual Arts in Nashville, Tennessee; and the de Young Museum in San Francisco, CA. 21 i. PO 50.544 appeared in Andy Warhol: The Complete Commissioned Magazine Work by Paul Marechal, which was published in 2014 by Prestel Verlag. 46. Since the publication of the November 1984 Vanity Fair article, portraits in the Prince Series have been sold at public auctions. For example, upon information and belief, works from the Prince series were offered for sale and, in all but two instances, sold at the following public auction houses on the following dates: a. Christie’s New York on November 10, 1999; b. Cornette de Saint-Cyr on December 11, 1999; c. Sotheby’s London on March 30, 2000; d. Tajan on August 2, 2000; e. De Vuyst on October 7, 2000; f. Cornette de Saint-Cyr on December 9, 2000; g. Cornette de Saint-Cyr on January 29, 2001; h. Christie’s London on June 28, 2002; i. Christie’s London on February 10, 2005; j. Sotheby’s London on October 25, 2005; k. Phillips de Pury & Company on May 12, 2006; and l. Sotheby’s London on October 16, 2015. VII. THE FOUNDATION OWNS WARHOL’S COPYRIGHT INTEREST IN THE PRINCE SERIES. 47. When Warhol died unexpectedly on February 22, 1987, he left an inventory of works of art and personal possessions. His will dictated that his entire estate, with the exception of certain legacies to family members, should be used to create a foundation dedicated to the “advancement of the visual arts.” 22 48. To carry out Warhol’s wishes, the Foundation was created and has worked to advance the visual arts from 1987 to the present. 49. Around 1994, the Foundation took ownership of the copyrights and trademarks that were in Warhol’s possession at the time of his death, including ownership of the Prince Series. VIII. MORE THAN 30 YEARS AFTER ONE OF WARHOL’S PRINCE PORTRAITS APPEARED IN VANITY FAIR, GOLDSMITH CLAIMED THAT SHE FIRST LEARNED ABOUT THE PRINCE SERIES IN 2016 AND ATTEMPTED TO SHAKE DOWN THE FOUNDATION. 50. On April 21, 2016, Prince Rogers Nelson died. 51. The media conglomerate Condé Nast published a special magazine called The Genius of Prince on or around May 18, 2016. This magazine was created by the editors of Vanity Fair, The New Yorker, WIRED, and Pitchfork. 52. One of Warhol’s Prince Portraits was used for the cover of The Genius of Prince. A true and correct copy of the cover is reproduced below. 23 53. In early 2016, the Foundation, through the Artist Rights Society, granted a license to Condé Nast to publish this work from the Prince Series in the magazine. The publisher paid a fee for the license. 54. In July 2016—over thirty years after the Prince Series was created and widely published throughout the United States—Defendants contacted the Foundation and began complaining for the first time that the Prince Series infringed upon the copyright associated with the 1981 Prince Publicity Photograph. Defendants demanded that the Foundation pay a substantial sum of money and threatened to sue if the Foundation refused. 55. Incredibly, Defendants claim that they were unaware of the Prince Series even though they granted a license to Vanity Fair in 1984 and one of Warhol’s Prince Portraits was published in the November 1984 issue of Vanity Fair. 56. Defendants’ effort to shake down the Foundation with its time-barred and meritless infringement claim is apparently part of their campaign to profit from Prince Rogers Nelson’s tragic death. Upon information and belief, around the same time, Defendants made demands from the Smithsonian Institution for its display of a photograph of Prince taken by Goldsmith. IX. WHEN GOLDSMITH TRIED TO SHAKE DOWN THE FOUNDATION, SHE KNEW THAT WARHOL’S SIGNATURE STYLE OF PORTRAITURE WAS A PROTECTED FAIR USE. 57. In 2016 and 2017, Goldsmith was well aware that Warhol’s signature style of portraiture was a protected fair use. 58. For example, on January 6, 2015, she wrote a public Facebook post stating, “I’m pretty knowledgeable about copyright laws and they are changing as Francoise Kirkland pointed out due to the latest ruling in the RIchard [sic] Prince case...they are not changing in our favor.” A true and correct copy of this Facebook post is attached hereto as Exhibit B. 24 59. When Goldsmith wrote the Facebook post attached hereto as Exhibit B, she was aware of the Second Circuit’s landmark decision in Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013). 60. At this time, Goldsmith was also aware that Warhol’s signature style of portraiture is a protected fair use. Cariou v. Prince made this clear, stating, “Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s ‘Oh, Pretty Woman’ ‘was clearly intended to ridicule the whitebread original.’ Campbell [v. Acuff-Rose Music, Inc.], 510 U.S. [569,] 582 [1994] (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising.” 714 F. 3d 694, 706 (2d Cir. 2013). 61. Despite knowing that Warhol’s portraits are a protected fair use, Defendants have attempted to extort a settlement from the Foundation. Goldsmith herself made this clear when she wrote in another public Facebook post dated January 5, 2015, “It is a crime that so many ‘artists’ can get away with taking photographers images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place.” Goldsmith also complained about Peter Max, another leading figure in the Pop Art movement whom she has unsuccessfully sued. 62. In that Facebook post, Goldsmith further revealed her understanding about the limits of her copyright interest—which also undermines her case here—when she wrote, “why doesn’t the copyright law protect photographers as artists?” A true and correct copy of this Facebook post is attached hereto as Exhibit C. 25 63. Goldsmith’s threatened litigation against the Foundation is frivolous. The Foundation is entitled to a declaration that Warhol’s Prince Series does not infringe Goldsmith’s copyright in the Prince Publicity Photograph, that the portraits are transformative or otherwise a protected fair use, and that Defendants’ claims are barred by the statute of limitations and the equitable doctrine of laches. FIRST CAUSE OF ACTION Declaratory Judgment of Non-Infringement Under 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act) and 17 U.S.C. § 101, et seq. (the Copyright Act) (Against Defendants) 64. The Foundation incorporates all of the above allegations as if they were fully stated here. 65. There is a real and actual controversy between the Foundation and Defendants as to whether Warhol’s Prince Series infringes Defendants’ 1981 copyright. 66. The Foundation is entitled to a judgment declaring that the Prince Series does not infringe Defendants’ 1981 copyright because none of the portraits in the Prince Series is a copy of, a phonorecord of, derivative work based on, a performance of, a display of, or a transmission of the Prince Publicity Photograph. SECOND CAUSE OF ACTION Declaratory Judgment of Fair Use Under 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act) and 17 U.S.C. § 101, et seq. (the Copyright Act) (Against Defendants) 67. The Foundation incorporates all of the above allegations as if they were fully stated here. 68. There is a real and actual controversy between the Foundation and Defendants as to whether Warhol’s Prince Series is a fair use of the Prince Publicity Photograph. 26 69. The Foundation is entitled to a judgment declaring that the Prince Series is a fair use of the Prince Publicity Photograph because, among other facts alleged above and incorporated here, each portrait in the Prince Series is transformative. THIRD CAUSE OF ACTION Declaratory Judgment that Defendants’ Threatened Claims Are Time-Barred Under 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act) and 17 U.S.C. § 507 (the Copyright Act) (Against Defendants) 70. The Foundation incorporates all of the above allegations as if they were fully stated here. 71. There is a real and actual controversy between the Foundation and Defendants as to whether Defendants’ meritless copyright claims against the Foundation based on the Prince Series are barred by the Copyright Act’s three-year statute of limitations. 72. Because Defendants knew or with reasonable diligence should have known of the Prince Series as early as November 1984, since one of Warhol’s Prince Portraits was published in Vanity Fair in November 1984, the statute of limitations governing Defendants’ claims lapsed in November 1987. 73. Because works from the Prince Series were exhibited in museums, published in books, and sold in public auctions as early as the 1990s through 2014, the three-year statute of limitations governing Defendants’ claims has expired. FOURTH CAUSE OF ACTION Declaratory Judgment of Laches Under 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act) (Against Defendants) 74. The Foundation incorporates all of the above allegations as if they were fully stated here. 27 75. There is a real and actual controversy between the Foundation and Defendants as to whether Defendants’ meritless copyright claims against the Foundation are barred by the equitable doctrine of laches. 76. Defendants knew or with reasonable diligence should have known of the Prince Series as early as November 1984, because one of Warhol’s Prince Portraits was published in Vanity Fair in November 1984. 77. Defendants knew or with reasonable diligence should have known of the Prince Series as early as the 1990s, because Warhol’s Prince Portraits have been widely exhibited in museums, published in books, and sold in public auctions as early as the 1980s. 78. Defendants’ failure to timely raise their purported infringement concerns with Warhol and the Foundation has prejudiced the Foundation’s ability to defend itself. Since the publication of one of Warhol’s Prince Portraits in 1984, Warhol—one of the key witnesses with personal knowledge relevant to this dispute—has died. 79. Moreover, upon information and belief, documents that might have related to Warhol’s creation of the Prince Series and to the Prince Publicity Photograph have been lost or destroyed for reasons outside the Foundation’s control. 80. Due to Defendants’ inexcusable delay of multiple decades, the evidentiary record in this case has become prejudicially stale. 81. The public interest would not be served by permitting Defendants to harass the Foundation with its meritless and time-barred claims. The Foundation is a not-for-profit corporation that seeks to promote the visual arts, and Warhol is considered by many to be one of the greatest American artists of the last century. Defendants attempt to shake down the Foundation and tarnish Warhol’s legacy is squarely contrary to the public interest. 28 82. For these and other reasons, Defendants’ potential copyright claims against the Foundation are barred by the equitable doctrine of laches. DEMAND FOR RELIEF WHEREFORE, the Foundation demands judgment as follows:  Declaring that the Prince Series does not infringe upon Defendants’ alleged copyright;  Declaring that works in the Prince Series are transformative works protected by fair use;  Declaring that Defendants’ potential copyright claims based on the Prince Series are barred by the statute of limitations;  Declaring that Defendants’ potential copyright claims based on the Prince Series are barred by the equitable doctrine of laches;  Awarding the Foundation the cost of suit as incurred in this action and attorneys’ fees under 17 U.S.C. § 505; and  Awarding the Foundation all other relief as may be appropriate. Dated: April 7, 2017 New York, New York BOIES SCHILLER FLEXNER LLP By: _/s/ Luke Nikas_________________ Luke Nikas 575 Lexington Avenue New York, New York 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 Email: lnikas@bsfllp.com Attorneys for Plaintiff The Andy Warhol Foundation for the Visual Arts, Inc. 29