Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
All Is Not Fair In Love and Warhol
Courts have said time and again that the fair use doctrine may be "'the most troublesome in the whole law of copyright.'" See, e.g., Oracle Am., Inc. v. Google Inc., 886 F.3d 1179, 1191 (Fed. Cir. 2018) [internal citations omitted], rev'd on other grounds, 141 S. Ct. 1183 (2021). The Supreme Court's May 18, 2023 decision, which seeks to clarify what is or is not "transformative use" under the law, affirmed The Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d Cir. 2021), finding no fair use. In the process, the Supreme Court adds a new layer of analysis in deciding what is or is not fair. The decision has also generated considerable controversy between Justice Sotomayor, who wrote for the majority, and Justice Kagan, who wrote a stinging dissent. What is clear is that the label "transformative" is no longer a get-out-of-jail-free card; instead, a new balance must be struck between the new use and the exclusive right of authors to make derivative works, and part of that balance includes a clearer focus on the statutory fair use factors (education, comment and criticism) as well as the commercial nature or not of the new work. As a practical matter, how much the decision changes in this "troublesome" area remains to be seen.
In Andy Warhol Found., iconic pop-artist Andy Warhol made a series of silk screens and drawings based on a photograph of Prince, taken by Lynn Goldsmith (in particular adding some of his recognizable flourishes). Both the original and the reworked photos were used as magazine covers. The Second Circuit had overturned the district court grant of summary judgment of fair use, holding instead that, Warhol infringed the copyrighted photograph. The Second Circuit concluded the district court erroneously focused on the subjective meanings of the works, reasoning instead that "the court cannot assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue." 11 F.4th at 41. Said the court:
Though it may well have been Goldsmith's subjective intent to portray Prince as a "vulnerable human being" and Warhol's to strip Prince of that humanity and instead display him as a popular icon, whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic — or for that matter, a judge — draws from the work. Were it otherwise, the law may well "recogniz[e] any alteration as transformative." [Citation omitted.]
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?