Sullivan has filed an amicus curiae (friend of the court) brief in the upcoming Supreme Court case Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The brief was filed as counsel of record for copyright scholar Philippa S. Loengard, the Kernochan Center for Law, Media and the Arts at Columbia Law School. The case concerns the applicability of Section 107 of the Copyright Act, which allows fair use that would otherwise constitute copyright infringement, to a print Andy Warhol made of a photograph of musician Prince by photographer Lynn Goldsmith. In particular, the question put to the Court deals with the implications of the Court’s decision almost thirty years ago in Campbell v Acuff-Rose Music, Inc., 510 US 569, 579 (1994), which allowed for the possibility that a secondary use could be considered fair use if it were sufficiently “transformative”. Exactly what that means in the context of visual arts has been a thorny—and sometimes disjointed—topic in recent years. Our brief explains that the court should base the fair use analysis on the four factors established by Congress. In the case of the first of the four factors, the court should focus on the legal formulation of the purpose and nature of the works. In contrast, the study of the meaning or message of the works by the Warhol Foundation and the friends Supporting them is a misguided path that does not provide clarity and would render copyright in photographs de facto unenforceable. This case is not a fight between Lynn Goldsmith and Andy Warhol; these artists proved perfectly capable of arranging the balance for themselves in 1984. It’s a struggle between a maximalist view of the Warhol Foundation, which rejects the value of photography as a creative medium at all.
Goldsmith captured the photo in question in 1981 as part of a series of images of Prince, then a rising star but far from a household name. She licensed images from this shoot to various magazines, including a cover of Musician, persons, Reader’s Digest, and the Smithsonian Catalog. Prince’s album Purple Rain 1984 was a cultural event that is hard to imagine in today’s diffuse media market. The album dominated the Billboard charts and spawned an eponymous, albeit flawed, film (which, in perhaps Prince’s greatest show of confidence, also includes a string of absolutely stunning sets by rival band The Time). Prince was the man of the hour between the late clash of disco and guitar rock, new wave, and the supernova that was Michael Jackson. Prince’s incomparable guitar skills and exuberant charisma made him arguably the biggest rock star in the world.
vanity fair The magazine took notice and commissioned Warhol to create an illustration for its “Purple Fame” article. Vanity Fair licensed the Goldsmith photograph “for use as an artistic reference for an illustration to be published in Vanity Fair,” and agreed to credit Goldsmith in the magazine along with Warhol’s silkscreen.
Warhol made a number of Prince prints, including the one “Purple Prince” that appeared in Vanity Fair. Warhol’s prints reproduce the Prince’s head over the shoulders of Goldsmith’s photograph. Color is added to Prince’s face and background. Prince’s hairlines at the edge are made more jagged with parallel lines in a lighter color.
The dispute that led to the case before the court is not about whether Warhol had a fair use right in 1984. He needed one because Vanity Fair was licensed for that very use. The current dispute arose because Prince died in 2016 and the demand for pictures of him rose sharply. Condé Nast sought permission from the Warhol Foundation – which controls Warhol’s own copyright after Warhol’s death in 1987 – to reproduce the “Purple Prince” image in question. Condé Nast eventually released an “Orange Prince” Warhol print on a cover, but this time Goldsmith went uncredited. Goldsmith approached the Warhol Foundation to settle the dispute over a license that no one had applied for.
Instead, the Warhol Foundation sued Goldsmith, and Goldsmith countersued for infringement resulting from its use in 2016. The district court ruled that the Warhol prints were fair use, but the Second Circuit reversed. Earlier this year, the Supreme Court agreed to hear the Warhol Foundation’s petition.
The fair use doctrine allows secondary users to use otherwise copyrighted works without penalty. The concept was codified in Section 107, but the origin of a copyright exception that gives subsequent creators freedom to use works has its roots in 19th-century law and tradition. Campbell represented a turning point in this case law. There the court referred to the Hon. Article by Pierre N. Leval Towards a fair use standard, 103 Harv. L. Rev. 1105 (1990) and the Judge’s recharacterization of traditionally dominant purpose and character analysis. While previous cases have examined whether the secondary work replaced the original creation, the court allowed a second possibility that might allow the secondary work to be considered a fair use – the introduction of a new meaning or message. Campbell, 510 US at 579. The court did not define adding a new meaning or message as the exclusive path to fair use, but the court did not come to the application of this test either. Lower courts, meanwhile, have struggled to determine whether artists’ works qualify for the fair use exception by analyzing meaning or message, rather than examining the works’ purpose or character beforehand. In recent years, especially in the visual arts, the first factor has become increasingly important and has become dominant in most cases. See Jiarui Liu, An empirical study on transformative use in copyright law 22 Stan. Technology. L. Rev. 163 (2019).
Since Campbell, courts have frequently referred to the first factor of Section 107 to determine whether the facts favor fair use. Even in Campbell The court recognized that 2 Live Crew’s song could be classified as transformative because it “comment[ed] on the original or criticism[ed] it, to an extent.” 510 US at 583. The court emphasized that the song “Pretty Woman,” which humorously comments on the naivety of the original Roy Orbison hit “Oh, Pretty Woman,” “necessarily bears a recognizable allusion to its subject arises through distorted imitation.” ID. at 588. Transformativeness can represent a new purpose and character –Campbell has already held up. However, transformability cannot be an outcome-determining factor, for the simple reason that Congress has chosen not to make it one.
However, when it came to defining a new meaning or message, the devil was in the details, and as outlined in our briefing, the results were wildly contradictory. More specifically, when any A new meaning or message is enough to be transformative, and when transformative means fair use, copyright becomes all but unenforceable. However, copyright is a balance designed to encourage creative expression and also bring economic benefits to creators.
As our brief proponents, the court should return to a more direct examination of the purpose and character of the works and follow the directions of Congress, rather than engage in a subjective inquiry into who means what. That focus would strike the right balance. If an artist uses earlier images for the same purpose—depicting a lake in Death Valley after a storm or Prince—then they cannot realistically claim to have complied with Section 107. When an artist uses the existence and fame of an earlier work for a different purpose entirely – as Velázquez used the Rubens copies that hung on the walls of his patron King Philip IV of Spain Las Meninasto take the example we use in our letter – he has nothing to fear.
In conclusion, the letter states that none other than Andy Warhol was someone who understood this balance well. Warhol regularly licensed images such as Mickey Mouse when appropriate, eventually balancing his own work between photographs he licensed and photographs he eventually began taking himself.
The court will reason on October 12, 2022.