Experts Weigh In on Warhol Decision

Andy Warhol and Richard Prince have long been known as two of the art world’s most famous copyists, and as copyright law continues to redefine the blurred lines, it’s difficult to see how other people can be seen in their work. Known as a plagiarist whose use of images has been scrutinized in court and pushes boundaries. .

The Supreme Court last week settled a large copyright dispute over Warhol. Many experts believed there would be spillovers to other lawsuits, such as the Prince lawsuit currently pending in federal court in New York.

Ultimately, however, the court’s Warhol ruling appears to have been fairly narrow-minded, according to experts, with judges placing less emphasis on the extent to which an artist can copy other works, instead It is said that he made a judgment about what kind of use such works will be used. can be placed in

Warhol, who died in 1987, created a series of silkscreen portraits of the rock star Prince, based on photographs of Prince taken by Lynn Goldsmith. One of his silkscreens was licensed by his estate to Vanity Fair magazine for the cover of a special issue on the musician’s legacy in 2016.

When Goldsmith filed a lawsuit alleging copyright infringement, the Warhol Foundation argued that it had the right to so-called copyright infringement. defense of fair use. Lawyers for the estate suggested Warhol’s treatment of the images, which were colored, cropped and shadowed in certain places, was “transformative.” Courts adopted the term to define the extent to which an appropriating artist must make changes to the underlying work. pass master.

Many thought the latest Supreme Court ruling might more clearly delineate what counts as transformative. But the judges instead decided to focus on how Warhol’s portrait was used to explain the article about Warhol. The court found that such use was not sufficiently distinguished from the “purpose and character” of Goldsmith’s photograph. This photo was also licensed to Vanity Fair several years ago to illustrate an article about Prince.

“It wasn’t the creative use that was at stake, it was the license use,” said Michael W. Carroll, a professor at the American University of Washington College of Law.

In the 7-2 Warhol decision, the High Court majority emphasized that ultimately both Goldsmiths and the Warhol Foundation were essentially competing for the same commercial interests. The photographs and prints were both sold to magazines and used as art to accompany articles about Prince, and thus shared “substantially the same commercial purpose,” the court said. In other words, the majority said Warhol’s prints were being used as a “commercial substitute” for Goldsmith’s photographs.

Unusually, the court released several images as part of its opinion, including a photograph of Goldsmith and Warhol’s orange silkscreen used for the 2016 Vanity Fair cover.

Justice Neil Gorsuch, in a concurring opinion, said the court’s ruling was tailored to the particular case in court and that if the Warhol Foundation had sought to exploit his art in any other way, it would have been suggested that it might have been considered fair.

“If, for example, the Foundation were to exhibit Mr. Warhol’s Prince statue in a non-profit museum or in a commercial book on 20th-century art, the purpose and character of the use could very well be fair use.” he wrote “But those cases are not this case.”

Further, in Justice Sonia Sotomayor’s summary of the majority opinion, the court held that merely conveying “new meanings or messages” through an artistically altered work was, in itself, “sufficient justification” to obtain protection. I can’t do it,” he said.

Among dissents, Justice Elena Kagan, joined by Chief Justice John G. Roberts, Jr., sided with the majority in ignoring the question of whether Warhol’s work was artistically transformative. claimed to have made a mistake.

“This is a change in the way the courts have thought about fair use,” said Jonathan Y. Ellis, co-chair of McGuire Woods’ Appeals and Matters Team. He added that the High Court’s ruling was “less focused on the creation of copyrighted works” and appeared to steer lower courts away from alteration as the most important legal touchstone.

The issue of change remains central to the Richard Prince case. In 2013, Prince was at the center of a closely watched lawsuit that established a somewhat ambiguous precedent for fair use rulings. Now he’s back in court, defending an institution called. “New Portrait” For this piece, he printed some Instagram photos on a large canvas and added his own Instagram-style comments underneath. Two of the photographers whose photos were reproduced on canvas have filed lawsuits.

Lawyers for Richard Prince argued that the client could do so under the law, as did the Warhol Foundation. defense of fair use And that the artist’s work brought about a change.

But earlier this month, a federal judge in Manhattan said: rejected His motion for summary judgment would have ended the lawsuit, finding that his art had merely altered, and not distorted, the photographs he copied, so the case could have gone to trial. .

Richard Prince’s attorney Brian Sexton said the Supreme Court “spent a great deal of effort” making it clear in the Warhol decision that its findings were “limited to a single licensing dispute.” said.

“The decision against Warhol clearly does not apply to his ‘New Portrait’ lawsuit because Richard Prince makes his paintings privately and does not license them,” he said.

More broadly, he added: “Artists’ concerns about the Warhol Foundation’s decision are some of the regressive language of fair use that was used in arriving at this very specific and narrow ruling on commercial licensing. is applied to individual works of art, and further confusion arises.”

An attorney for one of the plaintiffs in the Prince case declined to comment as the lawsuit is pending.

Experts say the district court’s ruling in the Prince case appears to focus more on questions about the creative intent behind the art than how Prince ultimately used it. rice field.

Copyright law expert Bert Lazare said Warhol’s ruling appeared to prioritize more pragmatic concerns about market competitiveness between works of art and their underlying photographs. .

Nonetheless, experts say following the Supreme Court’s ruling, the plaintiffs indicting Richard Prince narrowed their claims to highlight the potential for similar commercial uses of photographs and works of art. Said they could try to adjust.

And just days after the Supreme Court ruling, scholars agreed there was still much to be learned.

Laura Heyman, a professor of intellectual property law at the William and Mary Law School, said, “Looking at the developments in the lower courts, I think it will take time to fully understand the implications of the opinion. ‘ said.

Professor Carroll said he was also interested in how the decision would play out, suggesting that interpretations may not be unified. “How broadly to interpret the opinion is now up to the lower courts to decide,” he said. “Is it really just about the use of a competitive license, or is it about the creation of broader derivative works? I think it will be taken to court.”

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