Battle lines drawn as Andy Warhol copyright case goes to US Supreme Court

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Briefs have been filed ahead of oral arguments in the U.S. Supreme Court on Oct. 12 on the rules that determine whether a secondary work of art has sufficiently transformed a prior work to avoid liability for infringement.

The key question is whether a change in the “meaning or message” of the first work may be a factor. The dispute stems from the 2021 dismissal by the United States Court of Appeals for the Second Circuit of a claim by the Andy Warhol Foundation for the Visual Arts (AWF) that a series of works by Warhol, which he based on a photograph licensed by photographer Lynn Goldsmith, were “fair use” permitted. The Second Circuit said Warhol’s works failed all four fair use tests required by US copyright law, including the “purpose and character” or “transformativeness” test, which examines whether the second work has modified the first adequately.

The Second Circuit opinion stated that Warhol’s works derived and recognizably retained essential elements of Goldsmith’s portrayal, but that this transformation must involve “more than the imposition of another artist’s style”. Whether a work is transformative cannot depend “merely” on the artist’s “stated or perceived intention” or the “meaning or impression” a critic or judge derives from it, said the court – otherwise, “any modification” could be recognized as transformative under the law.

You have the look

In 1984 vanity lounge The magazine paid Goldsmith $400 for a license to use his 1981 portrait of musician Prince as an artist reference for an illustration in its November issue, but “no other uses”. The magazine hired Warhol for the job, and the issue credited Goldsmith twice. Later, Goldsmith discovered that Warhol had created 15 additional works based on his photograph, and that since Warhol had passed away, the AWF had authorized one of them in 2016 to be released. vanity lounge‘s parent company, Condé Nast, for $10,250 – a sum it says it should have been paid.

After Goldsmith asked the AWF to “amicably resolve the matter,” the foundation filed a lawsuit in federal district court seeking a ruling that the works created by Warhol, known as name of Prince series, were fair use protected. In 2021, the Second Circuit denied AWF’s claim and further rejected its argument that fair use was supported by a 2021 Supreme Court decision involving Google copying software code.

AWF is now asking the Supreme Court to overturn the Second Circuit’s opinion wrongly prohibiting courts from considering the “meaning or message” of works in question in fair dealing cases, which it says that the courts are instructed to do under the precedent of the Supreme Court and other federal courts. The Prince The series unmistakably changes Goldsmith’s meaning, AWF says, citing Goldsmith’s testimony that his image portrays Prince as uncomfortable and vulnerable, while the district court found that Warhol transformed his picture into an “iconic figure, larger than life”, removing “humanity”. in Goldsmith’s portrait.

The second circuit also relied too heavily on a visual similarity test, according to the AWF. He adds that, if the ruling stands, it would chill creative discourse and deny fair use protection to works of appropriation art that borrow from other works. It could also mean that museums and galleries concerned about whether their works are protected by copyright law might choose not to exhibit them.

Goldsmith says the issue is narrower. She points to the fourth fair use test, which asks how secondary use affects the potential market for the original work, and cites the licensing dollars creators will lose to copiers if the “meaning or message” test of the AWF wins. AWF’s grant of a license to any of the Prince the series’ works at Condé Nast displaced her ability to license her own portrayal to the magazine, she says. She adds that AWF’s “meaning or message” test is “manipulable” and “would inject instability into multibillion-dollar licensing markets” in different types of creative work, because “artists, critics and the public often disagree about what art means”. and perceptions can change over time. She adds that AWF’s warnings of “the death of the art” if there is no test of meaning or message are exaggerated, because a fair use analysis includes four factors, and the AWF lost out of four.

The ruling “left unclear whether museums or collectors could potentially be liable for infringement for exhibiting or publishing Warhol’s works”

Simon J. Frankel, lawyer

Sign ‘o the times

The case has attracted wide attention among copyright watchers, with numerous amicus curiae briefs filed with support from both sides. Simon J. Frankel, a San Francisco copyright attorney who filed an amicus brief on behalf of nine major U.S. art museums and the Association of Art Museum Directors who do not supported neither party, said The arts journal“The Second Circuit’s decision did not address museums’ display of original Warhol works or their publication of reproductions, saying such uses are ‘not particularly relevant’. It leaves it unclear whether museums or collectors may be potentially liable for copyright infringement for displaying or publishing Warhol’s works as part of their assignment.A Supreme Court ruling should clarify that such museum uses would be permitted.

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