When Andy Warhol used existing photographs as inspiration for his iconic pop art, did he transform the works enough to allow fair use of the underlying imagery? That question has been going through federal courts for more than three years – and now the artist’s estate is asking the US Supreme Court to weigh itself.
The Andy Warhol Foundation for the Visual Arts sued photographer Lynn Goldsmith in April 2017, asking the court for a statement that his 1984 Prince paintings did not infringe their copyright in the photo that inspired them, as his works were “entirely new Creations âwere. Vanity fair In 1984 Warhol commissioned the creation of a picture of Prince. He cropped Goldsmith’s photo and created a series of 16 images that “comment on the way society encounters and consumes celebrities”.
Goldsmith filed a counterclaim several months later, arguing that his work was not “transformative” and in the digital world “anyone can easily modify a photo on a computer to add high contrast, coloring and artifacts”.
U.S. District Judge John G. Koeltl sided with the Warhol Foundation in July 2019, issued a summary judgment, stating that his works were fair use – but in April the 2nd Court of Appeal overturned that judgment. Finding that Warhol’s image is essentially similar to Goldsmith’s, it sent the matter back to the district court for further processing.
The foundation called after the decision of the US Supreme Court in Google versus Oraclewhich came about a week after the reversal of the 2nd circle on this matter. It argued, in essence, that if Google can literally copy software code and turn it into a transformative fair use, surely Warhol’s work was, too. In September, the appeals court rejected the foundation’s request for a dress rehearsal, ruling that the ânovel and unusual contextâ of the Google dispute had no impact on the fair use analysis with regard to visual artistic expression.
On Thursday, the Warhol Foundation filed a petition asking the Supreme Court this question: âWhether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (like this court, the ninth court, and others Courts appeals procedure) or whether a court is prohibited from examining the significance of the work accused if it is “recognizably derived”[es] from ‘his source material (as the Second Circle has held). “
In the petition, a Latham & Watkins team, led by partners Roman Martinez, Andy Gass and Sy Damle, argues that the split âcovers an entire genre of visual arts with a cloud of legal uncertaintyâ.
âAccording to this court’s precedent, fair use investigation requires determining whether a creative work derived from another conveys a different meaning or message than the original. A follow-up that uses existing content to say something new and of its own is much more fair use, âsays the petition embedded below. “The test of the second circle, however forbids to determine whether the successor work conveys a different meaning or message than the original, whereby both works are works of art that show a visual similarity. “
The Warhol Foundation argues that if the 2nd and 9th circles use different frameworks for analyzing fair use, the existence of the split would cause a âfundamental changeâ in copyright law and lead to âinconsistent results and forum purchasesâ.
It argues that the decision also terrifies artistic expression, as creating new works as cultural commentary – like Warhol and the larger pop art movement – could now constitute copyright infringement if the image is deemed too “recognizable” to to be transformative.
The petition also emphasizes that the 2nd District decision runs counter to the Supreme Court precedent. How strictly this court adheres to its own precedent has become a hot topic lately due to widespread speculation that it is on the verge of overturning its nearly 50-year-old decision Roe versus Wade – but at least when it comes to. goes Google versus Oracle, eight of the nine current judges were involved in this 6-2 decision. (Judge Amy Coney Barrett was sworn in after she argued and failed to attend.) So the Latham team must convince an almost identical group of judges to look into the matter and state that visual arts are not so much about software distinguishes code when it comes to fair use – and they argue that the court already has this in its Google Decision.
âNo distinction in terms of content is possible Google, the Second Circuit simply (and incorrectly) interpreted the case as being limited to computer code, âthe petition reads. âThis court’s opinion was based on general principles of copyright law – including most notably the court’s earlier decision in Campbell Applying these principles to an artistic work. … In fact, the court has analogized directly with Warhol’s fine arts – the work of Campbell’s Soup Cans – to illustrate its point. … As this court has made clear, fair use can protect an “artistic painting” that uses a “copyright” “Advertising logo to make a comment on consumer behavior”, even if the artist reproduces the protected logo precisely. “