17 August 2022CopyrightMuireann Bolger

US govt weighs in on ‘fair use’ rule in Warhol photo dispute

Copyright case centres on controversial doctrine | The US government urged the Supreme court to back a ruling of infringement  | But the Andy Warhol Foundation for the Visual Arts claims work is ‘transformative’.

The US Department of Justice (DoJ) has waded into a major copyright dispute between The Andy Warhol Foundation for the Visual Arts and a photographer centring on the correct application of the ‘fair use’ legal doctrine.

In the amicus  brief filed on August 15, the US government supported a decision handed down by an appeals court that an Andy Warhol print used on a magazine cover infringed a photograph of the late singer Prince.

This case involves the commercial licensing of a silkscreen image that Andy Warhol had created based on Lynn Goldsmith’s copyrighted photograph taken in 1984.

Back in 2019, US District Court for the Southern District of New York granted summary judgment to the foundation holding that the Prince series works are protected by fair use,  and are ‘transformative’ because they give the Goldsmith “photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmiths’”.

However, the second circuit reversed this decision in March 2021, ruling that the modified images did not qualify as fair use, and were not transformative.

No ‘sound basis’ for appeal

The US government is now urging the US Supreme court to affirm this decision.

In its brief, it argued that the foundation has identified “no sound basis” for rejecting the court of appeals’ conclusion that the factors of ‘fair use’ weighs in Goldsmith’s favour.

“In commercially licensing the Orange Prince image to accompany a magazine article about Prince, petitioner did not use that image for a purpose meaningfully different from that of the Goldsmith Photograph. And petitioner does not argue that Warhol needed to copy the creative elements of the photograph in order to communicate any message about Prince or about celebrity,” said the brief.

The government also argued that the foundation’s actions had threatened Goldsmith’s access to other licensing opportunities.

The brief also disputed parallels with previous disputes involving artworks, holding that the case was also markedly different from the copyright law applied in Warhol’s iconic ‘Campbell’s Soup Cans’.

No Campbell effect

The DoJ held that by presenting the images as fine art, Warhol’s Campbell’s Soup Cans used the designs for “a wholly different purpose” than Campbell’s had sought to achieve in placing the designs on the cans themselves or on advertisements for its soup.

“No similar justifications for copying the Goldsmith photograph have been or could plausibly be asserted here,” noted the brief.

Additionally, the DoJ wrote that the fair-use analysis would be different if petitioner had licensed the Prince Series images to accompany articles on topics other than Prince.

“In that circumstance, the Prince Series image would be used for a purpose for which the Goldsmith Photograph is ill-suited; reproduction of the image as a point of reference would help to facilitate the creative expression contained in the article’s text; and the licensing would not likely supplant demand for Goldsmith’s work,” to DoJ said.

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