![]() The Warhol Foundation argued Warhol’s new meaning and message altered the purpose from the original photograph. The character-and-purpose factor typically examines both whether the new work’s purpose is commercial and whether it’s transformative. ![]() “I think they’re going to remand for something.” Granularity and Necessity “Nobody liked the Second Circuit opinion, from what I heard,” said O’Donnell, who wrote an amicus brief supporting Goldsmith on behalf of some copyright scholars and organizations. O’Donnell and others noted that the justices echoed the foundation’s concerns that the Second Circuit erred by disregarding the claimed change in meaning, and could tell it to rerun the analysis. “The questioning seemed to push back a lot on the idea that fair use could be decided so simply as ‘Is there a new meaning and message?’” Gray said.ĭespite the apparent rejection of the Warhol Foundation’s proposed standard, there was also “a lot of discomfort with restraint on creativity that’s inherent in copyright law,” said intellectual property law attorney Nicholas O’Donnell of Sullivan & Worcester LLP. ![]() They cited creative additions made in book-to-film adaptations like “The Shining” that almost no one suggests could be made without the original creator’s permission. The justices balked at the notion that adding new meaning, alone, could render a follow-on work fair use. Acuff-Rose Music Inc., the high court’s 1994 ruling that rap group 2 Live Crew made fair use of Roy Orbison’s “Oh, Pretty Woman.” It argued that the Second Circuit didn’t properly analyze the new meaning and message imbued by Warhol into his print, a consideration spelled out in Campbell v. The Warhol Foundation’s Supreme Court appeal focused on the purpose-and-character factor. “There are no bright lines in the evaluation of fair use and the Supreme Court could, at the very least, clarify how lower courts should apply the ‘transformative’ use analysis,” intellectual property attorney Stephanie Bunting Glaser of Patterson Belknap Webb & Tyler LLP said in an email. “The court’s decision could and likely will have implications far beyond the industries of photography and fine art.” And there’s a lot of room to do a lot of different things,” intellectual property attorney John Gray of Perkins Coie LLP said. “To me, far more important than who wins, and whether there’s a reversal or remand, is what guidance and clarification the court gives. Guidance on these questions could substantially affect fair use analyses across creative sectors. The justices probed issues including the level of granularity at which the different purposes should be considered and the degree to which a newer work required its use of the older piece for its purpose. “I don’t see either side winning a complete victory based on the questions.”Ī split decision could still leave a heavy impact, attorneys say. ![]() “The overarching point that struck me was that the court does not seem to know, at least as a group, what to do,” Ewing said. They “seemed to look for middle ground,” and there’s “at least a 50-50 chance” the case is remanded, intellectual property attorney Bruce Ewing of Dorsey & Whitney LLP said. The justices generally didn’t seem sympathetic to the wholesale position of either lower court, and could issue an opinion that neither thrills or devastates either side, attorneys said. The Andy Warhol Foundation countered that the Second Circuit incorrectly disregarded the change of meaning in its analysis, an approach that would at least threaten expensive litigation for any artist building new art from another work, chilling expression. Goldsmith argued the district court holding would eviscerate copyright protections, especially in photography, by allowing free use of valuable creative source material if alterations merely-and subjectively-change the meaning from the original. ![]() The US Court of Appeals for the Second Circuit previously found that the consideration, the first of four statutory fair use factors, favored Goldsmith, reversing a district court it said had improperly played art critic. The justices last week probed conflicting views on how to weigh the purpose and character of a follow-on use in a dispute over Vanity Fair’s publication of Warhol’s print, which used a Lynn Goldsmith photograph of Prince as its reference. VIDEO: Prince, Andy Warhol, and Fair Use at the Supreme Court ![]()
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