On Monday, March 28, 2022, the United States Supreme Court granted a writ of certiorari in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith and Lynn Goldsmith, Ltd. The case seeks to clarify a split between the Ninth Circuit Court of Appeals and the Second Circuit Court of Appeals concerning the fair use defense in copyright cases.
The question presented in the U.S. Supreme Court case is “[w]hether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material [as held by the Ninth Circuit], or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably derive[es] from’ its source material [as held by the Second Circuit].” The Second Circuit ruled on The Andy Warhol Foundation v. Goldsmith on March 26, 2021. In that case, the appeals court ruled that The Andy Warhol Foundation infringed photographer Lynn Goldsmith’s copyright in her photographs of the musician Prince when Vanity Fair magazine commissioned Andy Warhol to create artwork using Goldsmith’s photo. Warhol created fifteen additional works, consisting of silkscreen prints and pencil illustrations, based on Goldsmith’s photo. These series of portraits became known as the Prince Series.
The Ninth Circuit held in Seltzer v. Green Day, Inc. that “‘even where’ a new ‘work makes few physical changes to the original,’ it can be transformative if ‘new expressive content or [a new] message is apparent.'” The Ninth Circuit approach to fair use differs from the Second Circuit’s approach, thus creating a split between the two most important forums for copyright litigation in the United States. Over half the copyright cases are heard in these two courts.
The petition for writ of certiorari filed by The Andy Warhol Foundation states that this split “is a recipe for inconsistent results and forum shopping.” The petition also posits that the Second Circuit’s framework for fair use “will have drastic and harmful consequences for free expression” since it will chill artistic speech “by imposing the threat of ruinous penalties on artists who must predict – ex ante – whether their new work will be deemed ‘too recognizable’ to merit fair use protection.” The petition also alleges that, under the Second Circuit’s framework, art sellers and museums may be found responsible for selling and displaying art deriving from other works of art.
Copyright battle over Warhol Prince art gets high court audience, Courthouse News Service (March 28, 2022)
The Andy Warhol Foundation v. Goldsmith (U.S. Court of Appeals, Second Circuit, Case No. 19-2420)
Second Circuit Court of Appeals Rules That Andy Warhol’s Prince Series Prints Are Not Transformative Fair Use, Justia Legal News (March 31, 2021)
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