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26 April 2021CopyrightRory O'Neill

Google v Oracle invalidates Prince judgment, says Warhol foundation

The Andy Warhol Foundation (AWF) wants a US federal court to revisit a decision finding that the late artist’s series of Prince images infringed a photographer’s copyright.

Warhol’s estate argues that the US Court of Appeals for the Second Circuit’s controversial decision should no longer stand in light of the US Supreme Court’s ruling in Google v Oracle earlier this month.

Last month, the Second Circuit found that Warhol’s “Prince Series”, containing modified images of the musician, infringed the copyright for the photograph on which it was based.

AWF had argued that the work was fair use since Warhol had transformed Prince from a “vulnerable human being” in Lynn Goldsmith’s original 1981 photograph into the “iconic, larger-than-life” figure depicted in the “Prince Series”.

But the Second Circuit said judges could not base legal decisions on subjective judgments about art, with Justice Gerard Lynch writing: “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.”

“The district judge should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective,” Lynch added.

AWF is now seeking an en banc rehearing of the case by the full panel of Second Circuit judges, citing the Supreme Court’s April 2021 decision in Google v Oracle, which expanded the scope of works which can be protected under fair use.

According to AWF, whether a work is transformative hinges on whether a work “adds something new”, rather than “whether it sufficiently stamps out traces of its source material”.

“If there were any doubt, the Supreme Court made this distinction unmistakably clear in its Google decision, issued shortly after the panel’s opinion here. In Google, the defendant ‘copied’ the plaintiff’s software code ‘precisely,’ and did so for ‘the same reason’ that the plaintiff wrote it,” argued AWF in its en banc petition.

“Even though the defendant used the pre-existing material verbatim in its follow-on work, and even though both works were of the exact same type, the follow-on work served a socially constructive, distinct purpose—the development of ‘a highly creative and innovative’, alternative to the original,” AWF added.

If Google’s use of Oracle’s code was fair use on this basis, so too should be Warhol’s “Prince Series”, AWF told the court.

AWF also argues that the Second Circuit decision conflicts with other circuit’s position on fair use, setting up a potential Supreme Court appeal should the panel refuse to revisit the case or stand by the original judgment.

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More on this story

Copyright
25 August 2021   The US Court of Appeals for the Second Circuit has refused to alter its ruling that Andy Warhol’s art series based on photos of the musician Prince infringed the original photographer’s copyright.
Copyright
10 December 2021   The Andy Warhol Foundation for the Visual Arts has asked the US Supreme Court to review the Second Circuit’s ruling that the late artist’s “Prince Series” infringed a photographer’s copyright.
Copyright
29 March 2022   The US Supreme Court has agreed to hear arguments on whether Andy Warhol’s “Prince Series” infringed a photographer's copyright, the outcome of which could change the law on ‘far use’.