Second Circuit says Google v Oracle does not impact Prince judgment
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.
The Andy Warhol Federation (AWF) sought to appeal against the Circuit’s decision in April, arguing that the ruling was no longer tenable in light of the US Supreme Court’s landmark ruling in Google v. Oracle.
The long-running Google v. Oracle copyright dispute concerned whether Google’s use of computer code constituted “fair use”. The Supreme Court handed down its final decision in April, clearing Google of infringement and helping it avoid potentially billions of dollars worth of damages.
But the Second Circuit said that this does not affect its prior ruling, stating that the context of Google v. Oracle was “unusual”, and that copyrights involving computer code make its conclusions “less applicable to contexts such as ours”.
Writing for the three-judge panel in an opinion yesterday, 25 August, circuit judge Gerard Lynch noted that while Google v Oracle found that incorporating copyrighted code into a new program could constitute fair use, the Supreme Court ruling states “copyright’s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function”.
Lynch said: “A case that addresses fair use in such a novel and unusual context is unlikely to work a dramatic change in the analysis of established principles as applied to a traditional area of copyrighted artistic expression.”
The circuit also said that the AWF misread its decision as “effectively outlawing an entire genre of modern art”, stating that the crux of its decision was that “just as artists must pay for their paint, canvas, neon tubes, marble, film, or digital cameras...they must pay for that material [a copyrighted portrait] as well”.
Yesterday, the circuit again reversed the United States District Court for Southern District of New York’s gran t of AWF’s motion for a summary judgment in 2019 and remanded the case for further proceedings.
AWF’s arguments
In its motion to appeal, AWF claimed that the late artist’s “Prince Series” was not “substantially similar” enough to the original photograph and that Warhol’s art was protected by fair use.
But the Circuit disagreed, asserting that AWF’s claim that the “Prince Series” was not substantially similar was “logically antecedent” to a fair use defence “since there would be no need to invoke the fair-use defense in the absence of actionable infringement”.
Lynch said: “We reject AWF’s contention that we should be ‘more discerning’ in considering whether the Prince Series is substantially similar to the Goldsmith Photograph”.
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