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Are There Any Interesting Recent Legal Cases?

One case that I recently saw reported in the news involved a copyrighted photograph early in the career of the artist Prince and silk screens by Andy Warhol using that copyrighted photograph to create the images. Warhol was famous for his silk screen images of commercial items but often changed the commercial item to reflect a varied new work, possibly with outlandish colors or maybe an absurd wording.

Professional photographer, Lynn Goldsmith photographed Prince Rogers Nelson in 1981 as an up and coming rock musician. One of the photographs was used by Newsweek magazine after appropriate licensing and much later another magazine, Vanity Fair sought to use a photograph as an “artist reference for an illustration” for one time use and appropriate acknowledgement. Ms.Goldsmith was paid $400.00. Also employed to create the artistic illustration from Ms. Goldsmith’s photograph was Andy Warhol. Warhol created not only one silkscreen but an additional fifteen others in various colors.

After Prince’s death, Vanity Fair’s parent company Condé Nast asked that Vanity Fair provide the original image only to learn that there were several others that had been created. The “Orange Prince” silk screen was selected and used. It was later when Goldsmith saw her photograph recreated as a different colored Warhol of Prince and used without her permission or acknowledgement as the original source. Goldsmith notified the Andy Warhol Foundation (created under the Will of Andy Warhol following his death) that she believed the work was derived from and infringed on her copyrighted photograph; Condé Nast responded by suing her for a declaratory right (asking a court to declare my rights) noninfringement or in the alternative “fair use”. Goldsmith countersued for infringement. “Fair Use” is around the reader all of the time without From my law school education, it is my opinion that the random snippets of various songs that you are probably familiar with heard on news shows before they go to break, etc. come under the fair use doctrine.

The District Court considered the fourfacets of the Fair Use Doctrine and granted declaratory judgment to the Andy Warhol Foundation. The appeals court reversed the decision and held just the opposite that the four facets favored Goldsmith. The case was submitted to the United States Supreme Court who agreed to hear the case. Justice Sotomayor wrote the 7-2 majority opinion. Justice Sotomayor wrote: “In this Court, the sole question presented is whether the first fair use factor, ‘the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes’ §107(1), weighs in favor of AWF’s (Andy Warhol Foundation) recent commercial licensing to Condé Nast”.

The Andy Warhol Foundation stated that the images were transformative because the images conveyed a “different meaning or message than the photograph”. “But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor. Here, the specific use of Goldsmith’s photograph alleged to infringe her copyright is AWF’s licensing of Orange Prince to Condé Nast.”

A bottom line is that the Andy Warhol orange Prince and the others are of commercial value. While the Copyright Act encourages “fair” derivative works it must balance the “fairness” in copying a copyrighted work as described in four facets with two noted below:

1. The first already discussed is the character and use whether it is for commercial use or nonprofit educational use.

2. Secondly it furthers the goal of copyright promoting science and the arts without decreasing an incentive to create copyrighted works.

Finally, the majority held the works to be transformative but the commercial use was found to be a larger incentive and therefore the majority held for Ms. Goldsmith, affirming the opinion of the appellate court.

***This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist***

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