APPC Special News Alert - Warhol v. Goldsmith

The ARLIS/NA APPC has put together a special news alert for its members to help follow the Warhol v. Goldsmith hearings at the US Supreme Court starting October 12, 2022.

We have been following the case closely because of its potential to affect fair use laws as related to art.

Andy Warhol Foundation for the Visual Arts, Inc. (petitioner), v. Lynn Goldsmith, et al. (defendant)

No. 21-869. Docketed Dec. 13, 2021. Decision date August 24, 2021. Rehearing denied Sept. 10, 2021.

41 Brief amici curiae documents were filed between Jan 10, 2022 and August 15, 2022, either in support of Goldsmith, Warhol Foundation, or in support of neither party.

The US Supreme Court will begin hearing oral arguments on October 12, 2022.

"The question presented is:

Whether a work of art is "transformative" when it conveys a different meaning or message from its source material (as this Court, the Ninth Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it "recognizably deriv[es] from" its source material (as the Second Circuit has held)."

Case Docket

Supreme Court of the US Blog

Issue Summary:

• 1981 - Newsweek asked Lynn Goldsmith to take pictures of Prince in concert and at her studio. The magazine ran a concert photo, and Goldsmith kept the portraits.
• 1984 - Prince released "Purple Rain". Vanity Fair hired Warhol to create an image to accompany an article titled "Purple Fame." Vanity Fair paid Goldsmith $400 to license one of her 1981 portraits as an artist reference, agreed to credit her and use it only in connection with a single issue.
  Warhol produced a series of 16 images, altering the photograph in various ways, by cropping and colouring them in Warhol's style. Vanity Fair ran one of the images.
• 1987 - Warhol died, and his foundation assumed ownership of his work, including the 16 images in the Prince Series. Works in the series have sold for six figures.
• 2016 - Prince died, and Vanity Fair's parent company, Conde Nast, published a special issue celebrating his life. It paid the foundation $10,250 to use a different image from the Prince Series for the cover. Goldsmith received no money or credit.
• 2019 - Goldsmith sued the Warhol foundation for copyright infringement. Litigation focused on whether Warhol had transformed Goldsmith's photograph. Did the work fall under fair use?
• 2019 - In the district court, federal judge John G. Koeltl ruled Warhol had transformed Goldsmith's original photograph under fair use, and granted motion for the Foundation to block further litigation from Goldsmith.
• 2021 - The Second Circuit court reversed Koeltl's judgement in March 2021, and allowed Goldsmith's lawsuit to proceed.
• 2022 - Goldsmith v. Warhol entered Supreme Court docket and is scheduled to be heard during the 2022-2023 term. The date for oral hearings to begin is set for October 12, 2022.

Section 107 of the Copyright Act provides framework in determining whether something is fair use. The "transformative use" standard was set by the Supreme Court in 1994.

The Goldsmith v. Warhol case has been compared to similar fair use cases. Google LLC v. Oracle America, Inc. (2021), which ruled in favour of Google's use of Java API source code owned by Oracle under fair use of computer code. Cariou v. Prince (2014) involved Richard Prince's unlicensed use of a photographer's images of Rastafarians, and the court reiterated that all four fair use factors continue to matter and should be independently considered and weighed.

Notable Brief amici curiae:

Library Futures Institute, et al., filed in support of neither party as a non-profit organization representing the Software Preservation Network, the EveryLibrary Institute, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries.

Advocates that fair use benefits libraries, archives, cultural heritage institutions, and their users. Urges the court to ensure that its reasoning does not jeopardize transformative uses in support of research, teaching, scholarship, and learning. Calls for the court to consider that the legality of specialized collections may to be called into question by this fair use decision.

Copyright Alliance filed in support of neither party.

Focuses on the intersection of copyright owner's exclusive right to control creation of derivative works and the exceptions that qualify for fair use. Advocates interpreting the Copyright Act in a manner that draws a clear line between transformative uses and uses that violate a copyright holder's exclusive right to prepare derivative works. Suggests that focusing on the Warhol Foundation's proposed test or transformative use risks negating a copyright owner's exclusive right to control the creation of derivative works. Licensing is critical to ensure all creators are incentivized to create new original works and able to reap the full benefit of their work.

The Robert Rauschenberg Foundation, Roy Lichenstein Foundation, and Brooklyn Museum filed in support of Warhol Foundation.

Discusses the fair use doctrine's protection of numerous artworks dependent on the appropriation and transformation of existing imagery. Argues that the Second Circuit's decision is contrary to centuries of artistic tradition and unsettles the balance struck by the Court's fair-use decisions. Expresses fear that context has been rendered meaningless in the most important regional circuit for the art world, and that the decision will have an enormous chilling effect on the arts.

Artists filed in support of Warhol Foundation. Artists listed are Darren Bader, Barbara Kruger, Leslie Hewitt, Liz Linden, Jill Magid, Michael Mandiberg, Sara Greenberger Rafferty, Alfred Steiner, Robert Storr, and Hank Willis Thomas.

Argues that copyright laws restrict speech and have potential to limit free expression, hence the need for fair use. Fair use is an integral protection for working artists who seek to use, incorporate, and comment upon existing materials. Argues that visual similarity isn't enough to determine whether work is transformative under fair use, and that the expanded risk of legal liability is dangerous for artists who do not have the financial resources to fight copyright litigation.

Art Law Professors filed in support of Warhol Foundation.

Argues that the Second Circuit decision runs afoul of the First Amendment because it ignores the meaning and message of Warhol's art.

The American Society of Media Photographers, Inc. filed in support of Goldsmith as representatives of the American Society of Media Photographers, Inc., National Press Photographers Association, American Photographic Artists, North American Nature Photography Assocation, and Getty Images (US).

Argues that many creatives will be asking what's the use in creating and registering original works if they lose control over their work. Focuses on transformative aspect of fair use, and argues that Warhol Foundation sets up a false dichotomy of whether any derivative that conveys different meaning is transformative or if the courts should be forbidden from considering meaning except where source material used is unrecognizable.

The United States filed in support of Goldsmith.

Focuses on copyright law. Determines that a valid copyright grants the owner "exclusive rights" to, among other things, reproduce the copyrighted work in copies, prepare derivative works based upon the copyrighted work, distribute copies of the copyrighted work to the public, and display the copyrighted work publicly. Cites Section 107 of the Copyright Act of 1976 determining particular uses of copyright as fair use, and asserts that fair-use inquiry be focused on the specific use that is alleged to be infringing. Argues that Warhol Foundation misread Campbell, and that the Court cannot hold that any new meaning or message suffices to render a secondary work transformative.

News Articles:

Marsh, Michelle Mancino and Korotkin, Lindsay. "A Blow to Pop Art: Case Review of Warhol v. Goldsmith (2021)." Center for Art Law, May 10, 2021.

The Second Circuit's decision that Warhol's use of Goldsmith's photograph in the "Prince Series" was not fair use. This has significant implications for the legacy of Warhol and the Warhol Foundation and opens up the foundation for further litigation.

Lewis, Samuel A. "Warhol v. Goldsmith Could Be 'Biggest Copyright Case in Decades'." Cozen O'Connor, April 4, 2022.

The author suggests that the court could either give some guidance on the kinds of things that could be considered transformative, or restrict the doctrine. He says the court should issue a curtailing ruling because the doctrine of transformative use has been expanded so much over the years that it has pushed the exclusive right to make derivative work to the side.

Rutledge, Virginia. "The stakes of a copyright case being heard by the US Supreme Court go way beyond Andy Warhol." The Art Newspaper, May 6, 2022.

Argues that the case questions who has jurisdiction to discern meaningful differences between two visually similar works. Urges SCOTUS to reaffirm its own transformative fair use standard, or else art collections will be filled with unlawful art.

"This autumn, the US Supreme Court will consider whether you—artists, collectors, gallerists, historians, critics, curators, museum administrators, educators—all of us as producers, stewards and the audience for art, are relevant. Does your opinion of the significance of a work of art have legal value? Does your ability to discern meaningful difference between two visually similar works matter?"

Samuelson, Pamela. "Andy Warhol Foundation v. Goldsmith: The Supreme Court Revisits Transformative Fair Uses." Kluwer Copyright Blog, May 9, 2022.

Argues that the Second Circuit's decision was wrong and that Warhol's works were unquestionably transformative. Compares Warhol v. Goldsmith with Google v. Oracle because the reuse of that code enabled ongoing creativity by Oracle, Google, and Java programmers. Asserts that Warhol was given the Goldsmith photograph as artist reference, and nothing in the record indicates that Vanity Fair told Warhol about a one-time-use limitation.

Madigan, Kevin. "Supreme Court Should Reject Warhol's Overbroad Transformative Use Test." Copyright Alliance, June 23, 2022.

Copyright Alliance filed a brief amici curiae in support of neither party, and suggests that transformative use is only one part of fair use factors that courts must consider. Copyright Alliance suggests that the Google v. Oracle fair use analysis is not applicable to this case, and argues that the Warhol Foundation's standard of transformative use would disrupt copyright licensing and how copyright works are used with new technologies.

Adler, Amy. "Q&A: With Warhol Foundation v. Goldsmith on the Supreme Court docket, Amy Adler discusses fair use in contemporary art law." NYU Law, August 10, 2022.

Fair use doctrine permits third parties to use copyrighted work without an owner's permission for news reporting, teaching, research, and other purposes. How much can an artist build on previous work to create new work? Fair use ensures that copyright functions as an engine of free expression, rather than as an obstacle to it.

Liptak, Adam. "Warhol's images of Prince: Social commentary or copyright infringement?" The New York Times, August 16, 2022.

Outlines the question of whether Warhol's alterations transformed the photograph into something different, or if the judges should compare similarities  and leave the interpretation of meaning to others.  References a 1903 copyright case in which the judge, Justice Oliver Wendell Holmes Jr., said judges should be cautious where art was at issue. “It would be a dangerous undertaking for persons trained only to the law,” he wrote, “to constitute themselves final judges of the worth of pictorial illustrations.”

Summary Resources:

"Andy Warhol Foundation for the Arts v. Goldsmith Oral Argument"

Video link to the oral argument presented today, Oct 12, 2022 on C-Span.

"Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith"

Summary of the case so far on Wikipedia.

"The Andy Warhol Foundation for the Visual Arts v. Goldsmith, No. 19-2420 (2d Cir. 2021)"

The Second Circuit reversed the district court's grant of summary judgement to the Foundation.

"US Copyright Office Fair Use Index"

The US Copyright Office Fair Use Index is used to make the principles and application of fair use more accessible and understandable to the public. This link provides access to similar cases considering fair use, and lists the four evaluation factors for fair use:

• Purpose and character of the use, including whether use is of a commercial nature or nonprofit educational purposes
• Nature of the copyrighted work
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole
• Effect of the use upon the potential market for or value of the copyrighted work

Questions:

• Where is the line between derivative work and copying artwork?
• What is the role of court in determining "transformative use" in derivative works? If they're the ones to determine transformative use, does that negate the expertise and scholarship of experts in the art field?
• What is the role of artist in offering new meaning by presenting the work in a different context?
• How does licensing work? It seems like Vanity Fair neglected to inform Warhol of the limited-use license of the reference image. If Goldstein had been credited during the 2016 publication, could this have been avoided? Who really had the license for the image used in the 2016 issue of Conde Nast?
• If the court rules in favour of Warhol, how will that expand the boundaries of fair use in art?
• If the court rules in favour of Goldsmith, how will that limit the boundaries of fair use in art?