US Supreme Court hears arguments on Andy Warhol copyright dispute

[Savonarola]

From Al Jazeera

US Supreme Court hears arguments on Andy Warhol copyright dispute

The court's decision could have wide-ranging implications across the artistic community.

In lively arguments that touched on the meaning of art and referenced famous films, TV shows and paintings, US Supreme Court justices have grappled with a copyright dispute between a photographer and Andy Warhol's estate over the acclaimed artist's paintings of the rock star Prince.

The court heard about two hours of arguments on Wednesday in a case that could help map the boundaries for artistic works that draw upon other material.

The Andy Warhol Foundation appealed a lower court's ruling that his 1984 paintings – based on a 1981 photo of Prince that celebrity photographer Lynn Goldsmith shot for Newsweek magazine – were not protected by a copyright law doctrine called fair use that allows certain unlicensed use of copyright-protected works.

A key factor that courts consider for fair use is whether the new work has a "transformative" purpose, such as parody, education or criticism. Some justices expressed scepticism about the lower court's ruling that judges should not consider an artistic work's meaning in determining fair use.

"The purpose of all copyright law is to foster creativity," Justice Elena Kagan argued.

"So why shouldn't we ask," Kagan said, if a work is really creative and "something new and entirely different"?

Kagan noted that a 2021 Supreme Court ruling on fair use of software cited Warhol as an "example of how somebody can take an original work and make it be something entirely different, and that's exactly what the fair use doctrine wants to protect".

Warhol, who died in 1987, was a central figure in the US pop art movement, which arose in the 1950s. Warhol often created silkscreen prints and other works inspired by photos of consumer products and celebrities, including Marilyn Monroe and Elvis Presley.

He made 14 silkscreen prints and two pencil illustrations inspired by Goldsmith's photograph.

Chief Justice John Roberts said Warhol's work "sends a message about the depersonalization of modern culture and celebrity status".

"It's a different purpose" from the photo, Roberts said. "One is a commentary on modern society; the other is to show what Prince looks like."

Mona Lisa and Jaws

The arguments referenced various artistic creations, some adapted and some not. These included Leonardo da Vinci's 16th-century Mona Lisa painting, the 1975 film Jaws, the 1970s and 1980s TV shows All in the Family and The Jeffersons, Dutch artist Piet Mondrian's 20th-century abstract paintings, the Lord of the Rings books and films, and even Syracuse University sports merchandise.

Some justices worried about the stakes for the creators of material that inspires other works, suggesting that their eventual ruling, due by the end of June, would take that into account.

The case could have broad implications for artists as well as the entertainment industry. The justices pondered whether Warhol's use of Goldsmith's work was more like a film adaptation of a book, which normally requires a license.

"I think moviemakers might be surprised by the notion that what they do can't be fundamentally transformative," Kagan said. "So why is it that we can't imagine that Hollywood could just take a book and make a movie out of it without paying?"

Justice Clarence Thomas noted that he was a Prince fan in the 1980s.

"No longer?" Justice Kagan interjected mischievously.

"Well, only on Thursday night," Thomas responded to laughter from the audience.

"But let's say that I'm also a Syracuse [Orange] fan and I decide to make one of those big blowup posters of [Warhol's] Orange Prince" and "put 'Go Orange' underneath. Would you sue me?" Thomas asked the estate's lawyer Roman Martinez.

Goldsmith, 74, has said she learned of Warhol's unlicensed works only after Prince's 2016 death. She countersued Warhol's estate for copyright infringement after it asked a Manhattan federal court to rule that his works did not violate her rights. A judge found Warhol's works were protected by fair use, saying they transformed the "vulnerable" musician seen in Goldsmith's work into an "iconic, larger-than-life figure".

The Manhattan-based Second US Circuit Court of Appeals reversed that ruling last year.

The Supreme Court has not ruled on fair use in art since 1994 when it found that rap group 2 Live Crew's parody of singer Roy Orbison's Oh, Pretty Woman made fair use of the 1960s song.

I'm curious what the lawyers think about this.  As a layman it seems to me that if these paintings weren't covered by fair use; most of Warhol's work would also not be covered by fair use (but I'm not a lawyer, nor do I play one on an internet forum.)

[grumbler]

I'm not sure how Goldsmith can claim to own the likeness of Prince for copyright purposes.  She took a photograph, but Prince's face was just his face.  Nothing of her composition appears in Warhol's work.

[Tonitrus]

What I got out of that article is a bunch of judges arguing and making points on a topic that they are not uniquely, or at all, qualified to judge.

It is the place of the SC to determine if something that is being called art is "transformative" or "uniquely creative"? 

It is a weird kind of manticore that merges the realms of law and art critique.

[The Brain]

"The purpose of all copyright law is to foster creativity,"

*scoffs in mouse*

[The Minsky Moment]

I'm not sure how Goldsmith can claim to own the likeness of Prince for copyright purposes.  She took a photograph, but Prince's face was just his face.  Nothing of her composition appears in Warhol's work.

She doesn't claim a copyright in Prince's likeness.  She claims a copyright in the particular photographic image. And under US law, she owns that copyright unless it was a work for hire or she assigned it to someone else.

[The Minsky Moment]

What I got out of that article is a bunch of judges arguing and making points on a topic that they are not uniquely, or at all, qualified to judge.

It is the place of the SC to determine if something that is being called art is "transformative" or "uniquely creative"? 

It is a weird kind of manticore that merges the realms of law and art critique.

You should read the report of a music copyright case . . .

It's the result of an economic and legal system that allocated slices of property rights to different creative acts.  Courts aren't art critics, but they are the interpreters and enforcers of property rights.

[celedhring]

I once was an expert witness in an IP case and the whole thing was so absurdly subjective. My role was to testify whether the defendants work had differed from the work of the plaintiff (who used to work for the defendants and had showed that work to them) as to be considered "not derivative". I essentially said that the two works shared overall structures, theme, and tone, but the particulars were different, and the plaintiff lost the case. But at the same time it was obvious that they had been inspired by that girl's work.

[The Minsky Moment]

I once was an expert witness in an IP case and the whole thing was so absurdly subjective. My role was to testify whether the defendants work had differed from the work of the plaintiff (who used to work for the defendants and had showed that work to them) as to be considered "not derivative". I essentially said that the two works shared overall structures, theme, and tone, but the particulars were different, and the plaintiff lost the case. But at the same time it was obvious that they had been inspired by that girl's work.

But it seems like the result followed from crediting your testimony.  Being inspired by someone else's work is not a copyright violation.  Writers or other artists can take ideas, theme, "tone" from others.  It's duplicating the particulars that gets you in trouble.

Think of all the fantasy writers that got their ideas (and market) from Tolkien.  But as long as they aren't using the specific characters and settings, they can do that.  (and of course Tolkien himself borrowed heavily from germanic and anglo-saxon myth and legends - it's not like he has any special rights to elves, dwarves and the like).

[celedhring]

I once was an expert witness in an IP case and the whole thing was so absurdly subjective. My role was to testify whether the defendants work had differed from the work of the plaintiff (who used to work for the defendants and had showed that work to them) as to be considered "not derivative". I essentially said that the two works shared overall structures, theme, and tone, but the particulars were different, and the plaintiff lost the case. But at the same time it was obvious that they had been inspired by that girl's work.

But it seems like the result followed from crediting your testimony.  Being inspired by someone else's work is not a copyright violation.  Writers or other artists can take ideas, theme, "tone" from others.  It's duplicating the particulars that gets you in trouble.

Think of all the fantasy writers that got their ideas (and market) from Tolkien.  But as long as they aren't using the specific characters and settings, they can do that.  (and of course Tolkien himself borrowed heavily from germanic and anglo-saxon myth and legends - it's not like he has any special rights to elves, dwarves and the like).

Yeah, absolutely. But in this particular case it was obvious to me that the producers had read the plaintiff's work, had decided they wanted to do "something like that", but didn't want to pay her. (I didn't say that at the trial since it wasn't my place).

Just that there are many shades of grey in IP law.

[The Minsky Moment]

Yeah, absolutely. But in this particular case it was obvious to me that the producers had read the plaintiff's work, had decided they wanted to do "something like that", but didn't want to pay her. (I didn't say that at the trial since it wasn't my place).

I get it. But the ability to do that, rightly or wrongly, is WAD.

[grumbler]

Yeah, absolutely. But in this particular case it was obvious to me that the producers had read the plaintiff's work, had decided they wanted to do "something like that", but didn't want to pay her. (I didn't say that at the trial since it wasn't my place).

Just that there are many shades of grey in IP law.

Just like the folks at Paramount decided, after JMS pitched Babylon 5 to them, that they liked the work, wanted to do "something like that," but didn't want to pay JMS to do it.  So they created Deep Space Nine.  And they were perfectly entitled to.

[Barrister]

Haven't there been some music cases though that went the other way?

Oh yes - Blurred Lines.  Robin Thicke and Pharrell Williams were sued by the estate of Marvin Gaye for copying the feel and sound of the song Got to Give it Up, but not actually any of the actual notes or arrangement.  And the lawsuit was successful.

[The Minsky Moment]

Sound recording cases are a mess, as I alluded to above.

That said, under US law there is a requirement to show *both* "extrinsic" and "intrinsic" similarities, with "extrinsic" being objective elements of the compositions.  The "feel" finding established the intrinsic test element but that in itself was insufficient for the plaintiff to win.  The plaintiff also had to establish objective similarity.

  In the Blurred Lines case, plaintiff's expert addressed the extrinsic test by presenting evidence of similar signature phrases, hooks, a specific 4 note backup vocal, bass melodies, and keyboard parts, among others, which was deemed sufficient to throw it the jury.

[Savonarola]

Am I right, though, that if these Prince paintings aren't covered by fair use, Warhol's other works wouldn't be as well?  Campbell's soup cans, Brillo boxes, publicity stills of Marilyn Monroe and the like must also be copyrighted.

[The Minsky Moment]

Campbell's soup cans are trademarked but you can copy a trademark.  I don't think they have a copyright in the can.  Same for brillo.  The Monroe stills could be an issue.