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4 May 2021CopyrightMuireann Bolger

MoMA backs Warhol Foundation in Prince copyright dispute

The Andy Warhol Foundation (AWF) has garnered the support of prestigious art institutions and IP scholars in its bid to convince a US federal court to overturn a decision that the artist’s “Prince Series” infringed copyright.

The Museum of Modern Art (MoMA), The Solomon R. Guggenheim Foundation, the Whitney Museum of American Art, the Robert Rauschenberg Foundation, and the Roy Lichtenstein Foundation filed the amicus brief backing the AWF on Friday, April 30.

In the brief, the museums argued that a decision handed down by the US Court of Appeals for the Second Circuit in March conflicts with Supreme Court precedent, rewrites its own precedent, and threatens to render unlawful many of the most historically significant contemporary art works of the last half-century.

A further 60 IP scholars, including Rebecca Tushnet, professor at Harvard Law School, also filed a supporting brief on the same day arguing in favour of AWF’s position.

In its controversial decision, the Second Circuit panel found that Andy Warhol’s creation of 16 works, featuring modified images of the late pop star, infringed photographer Lynn Goldsmith’s copyright and did not qualify as fair use.

Impact of Google v Oracle

Warhol’s estate has sought an en banc rehearing of the case, citing the Supreme Court’s April 2021 decision in Google v Oracle, which expanded the scope of works that can be protected under fair use.

“Progress in the arts often involves one artist using or reusing another artist’s imagery as the basis for her own creative effort. The fair-use doctrine recognises and protects that ‘copying use” from claims of infringement, so long as it transforms the original by ‘add[ing] something new and important,’” the museums’ brief stated.

It further argued the March ruling was “at odds with this time-honoured tradition”, and the Supreme Court’s emphasis on fair use in Google v Oracle should invalidate the decision.

This new standard set by the Second Circuit, argued the institutions, “finds no support in precedent, and “will chill many artists in this circuit from making new works and critically impair the rest of the artistic community’s engagement with such works”.

The ability to “appropriate” existing imagery for their own use is especially vital to artists working in an age pervasively affected by mass media, consumerism, and celebrity, the brief added.

The institutions further argued that the ruling will create liability risks and—even where a secondary work is ultimately found to qualify for fair use, creating litigation costs that could render the age-old tradition of using prior works too costly to be worth the creative effort.

This would “not only deter artists from running the risk of infringement claims”, the brief argued, but would also adversely affect members of the artistic community that foster artistic works such as galleries and museums.

‘Narrow’ view of fair use

“An erroneously narrow view of fair use, like the one articulated by the panel, will make artists hesitant to use prior works to create their own, and make galleries hesitant to display these types of works, which will reciprocally discourage artists from making them,” they stated.

The brief highlighted previous examples of eminent artists who drew from inspiration from their contemporaries. The institutions contended that “depriving the world of the next generation of works that build upon prior pieces”, in the same manner that Édouard Manet borrowed from Giorgio Giorgione and Titian (Tiziano Vecelli), or in the same spirit with which Vincent VanGogh drew upon Jean-François Millet, “would not advance the goals of the Copyright Act”.

“The court should rehear this case and restore the proper balance of copyright protection and fair use” the brief concluded.

The brief filed by Harvard’s Tushnet on behalf of the 60 IP scholars, also argued that the panel opinion conflicts with Google’s broad conception of what counts as a transformative purpose and that the “Warhol panel took an extremely narrow and, in light of Google, erroneous view of what counts as a transformative purpose”.

This filing held that, if allowed to stand, the ruling would have a detrimental impact on museums and art galleries. “Warhol’s Prince series unquestionably has cultural importance. They are works of art whose creation benefits the public, which has enjoyed wide access to them,” the brief argued.

“If those works are deemed infringements, museums, galleries, libraries with books containing reproductions of the works, and all others would be automatically converted into infringers, with no ability to rely on...first sale limitations insofar as they do not own authorised copies,” it stated.

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More on this story

Copyright
3 July 2019   A ruling that a series of illustrations of late musician Prince by artist Andy Warhol are transformative and do not infringe a photographer’s copyright followed previous arguments made by the courts, said lawyers.
Copyright
26 April 2021   The Andy Warhol Foundation wants a US federal court to revisit a decision finding that the late artist’s series of Prince images infringed a photographer’s copyright.