Can Picasso case help paint a clearer picture of fair use?
The thorny issue of fair use versus copyright has snagged several times in the US Supreme Court and divided lower courts in recent history.
This is no less exemplified than by the pending SCOTUS decision on Warhol v Goldsmith, which could finally root matters in some kind of certainty.
Now, a series of art books containing photographic reproductions of Pablo Picasso’s work is ruffling the feathers of two jurisdictions and six US Circuit Courts—and SCOTUS has been asked to step in.
The quarrel—spanning two decades—concerns “The Picasso Project”, a catalogue of illustrated reference books showcasing the works of the late Spanish painter, published by US-based Alan Wofsy Fine Arts.
The eponymous Wofsy is now urging the US Supreme Court to review an opinion issued by the Court of Appeals for the Ninth Circuit in July 2022, which was denied a rehearing in September.
In his petition for writ of certiorari, filed in December, Wofsy argues that the Ninth Circuit “misapplied” the first three of the four statutory fair use factors under US copyright law:
- Whether the use is “commercial”.
- The level of “creativity” of the work that was reproduced.
- The significance of reproducing an entire photograph.
Wofsy raises three fundamental questions, underpinned by the above factors:
