Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 22, Issue 7
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Art is anything you can get away with…with limitation
When one thinks of Andy Warhol, they can’t help but visualize a painting of “Campbell’s Soup Cans”, a trippy image of Marilyn Monroe, or a colorful portrait of Mao Zedong. The use and manipulation of well-known images or icons has always gone hand-in-hand with this master of pop art. Warhol lived by the philosophy that “art is anything you can get away with,” and there is a new case challenging that statement.
The U.S. Supreme Court recently granted the Andy Warhol Foundation’s petition to hear its lawsuit regarding the late artist’s series of paintings of the musician Prince. Allegedly, Warhol created a series of paintings that incorporated a photograph without the permission of the photographer. The photographer, and owner, of the photograph’s copyright filed infringement claims based on Warhol’s unauthorized use. The Supreme Court’s decision could dramatically impact contemporary artists and the art we currently consume.
The heart of the case involves a commonly raised defense to allegations of copyright infringement called “fair use.” Under U.S. copyright law, fair use permits unlicensed use of a copyrighted work for certain purposes, such as educational , news reporting, research, and others. Moreover, fair use includes protection for “transformative use” when the unlicensed user takes the copyrighted work and adds something new that alters the purpose or character of the original work, and in doing so creates a critique, parody, or other altered form of expression. The Warhol case, which will be heard this fall by the Supreme Court, turns on this issue of transformative fair use.
In 1981, while on assignment for Newsweek, photographer Lynn Goldsmith captured images of Prince, which were never subsequently published. In 1984, Vanity Fair commissioned Warhol to create a pop art recreation of one of these photos. Warhol used the photograph to create the “Prince Series” — a set of high-contrast images infused with dramatic pops of color in a style similar to that of his “Campbell’s Soup Cans“.
Fast forward to 2017, Goldsmith objected to this use of the photograph, and a federal law suit resulted, with Goldsmith claiming copyright infringement and the Warhol Foundation arguing that the Prince Series did not infringe and constituted a fair use of Goldsmith’s photograph. The lower court sided with the Warhol Foundation. Goldsmith appealed, and the decision was reversed in favor of Goldsmith.
Now, the Supreme Court will hear each side’s argument and make its own determination. By taking up this case, the Supreme Court has the difficult and complex task of balancing the tension between protecting original works (such as a news photograph) and the freedom to create therefrom inspired works (of the type created by Warhol in this case) under the protective umbrella of transformative fair use.
It is often said that, in art, you are either the artist or the muse. So, where is the boundary between inspiration and infringement? For now, we can only wait and see where the Court will draw that line. I, for one, will be reading the briefs with a can of Campbell’s soup at the ready, and Prince’s Purple Rain playing in the background.
Published April 8, 2022
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