Art Law Report

Sullivan files Supreme Court Amicus Brief to Clarify Fair Use and Transformativeness in Warhol’s Use of Lynn Goldsmith’s Prince Photos

Posted by Nicholas O'Donnell on August 15, 2022 at 10:55 AM

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 permits as a fair use that would otherwise be copyright infringement—to a print made by Andy Warhol from a photograph of the musician Prince by photographer Lynn Goldsmith. In particular, the question presented to the Court addresses the implications of the Court’s holding nearly thirty years ago in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) that allowed for the possibility that a secondary use could be considered a fair use if it were sufficiently “transformative.” What exactly that means in the context of visual art has been a fraught—and at times incoherentsubject in recent years. Our brief explains that the Court should return the analysis of fair use to the four factors established by Congress. In the case of the first of the four factors, the Court should focus on the statutory language of the purpose and character of the works. By contrast, the inquiry into the meaning or message of the works advocated by the Warhol Foundation and the amici supporting it is a fool’s errand that provides no clarity and would render the copyright in photographs effectively unenforceable. This case is not a battle between Lynn Goldsmith and Andy Warhol; those artists proved entirely capable in 1984 of arranging the balance for themselves. It is a battle between a maximalist view by the Warhol Foundation that dismisses the value of photography as a creative medium at all.

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Topics: Copyright Act, Roy Orbison, Toward a Fair Use Standard, Campbell v. Acuff Rose Music Inc., Kernochan Center for Law Media and the Arts, Philippa S. Loengard Esq., Columbia Law School, Prince, transformative, Andy Warhol, Fair Use, Andy Warhol Foundation for the Visual Arts, Condé Nast, People Magazine, The Time, 2 Live Crew, Death Valley, Velázquez, Rubens, King Philip IV of Spain, Las Meninas, Section 107, Billboard, Pierre N. Leval, “Oh, Pretty Woman”, Mickey Mouse

Recap of “Rethinking Art Authentication” at the New York City Bar

Posted by Nicholas O'Donnell on December 10, 2015 at 6:34 AM

Last week the Art Law Committee of the New York City Bar Association hosted a terrific two-hour event. Entitled “Rethinking Art Authentication,” the discussion aimed to address a way forward from the problems of fakes, forgeries, and authentication lawsuits that have plagued the art market in recent years. It was a lively and fascinating evening.

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Topics: Karl Waldmann, Ceroni, Jacobs Technion-Cornell Institute, Leonardo da Vinci, Cady Noland, Knoedler, New York Assembly, Catalogue raisonée, authentication, Dean R. Nicyper, New York University, Colette Loll, Blue Room, Dan Flavin, Dada, Visual Artists Rights Act, Rick Johnson, Rethinking Art Authentication, The Work of Art in the Age of Mechanical Reproduct, Jennifer L. Mass, Art Law Committee, Trial Lawyers Association, Beltracchi, Events, La Bella Principessa, Hyperspectral imaging, Gerhard Richter, New York City Bar Association, Cornell Tech, Rijksmuseum, Cowboys Milking, Andy Warhol, Picasso, New York Senate, Walter Benjamin, Elmyr de Hory, Withers Bergman LLP, Amadeo Modigliani, Amy M. Adler

Backwards, Not Forwards: German Cultural Ministry Submits Revised Cultural Heritage Protection Law

Posted by Nicholas O'Donnell on September 21, 2015 at 6:50 AM

After two months of scathing criticism, the German Ministry of Culture has submitted a watered-down, but still problematic, revision to its Cultural Heritage Protection Law. Back in July, Minister of Culture Monika Grütters announced the initial proposal to amend Germany’s law, or Kulturgutschutzgesetz. The revision, however, is optical at best, and seems targeted only to soften criticism while still taking a regressive view of cultural property that is more at home in the 18th century than the 21st. It will probably pass, to the detriment of forward thinking art market players who will move their trade elsewhere.

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Topics: cultural property, Guelph Treasure, Georg Baselitz, German Cultural Ministry, U.S., Restitution, UNESCO, Switzerland, Austria, Kulturgutschutzgesetz, Gerhard Richter, Museums, Andy Warhol, Monika Grütters, Cultural Heritage Protection, Native American Graves Protection and Repatriation, NAGPRA

Free Brady!—Did Governor Baker’s T-Shirt Have a Copyright Problem?

Posted by Nicholas O'Donnell on August 12, 2015 at 6:17 AM

Tom Brady will be in New York today at a hearing in the litigation over his 4-game suspension by Roger Goodell for allegedly being “generally aware” of the deflation of footballs in the AFC Championship thrashing of the Indianapolis Colts last winter. For good legal analysis of the absolute fiasco that is the NFL’s attempt at a middle-school science project (instigated by the condition of a football introduced from the opposing team—but congratulations on another AFC Finalist banner) and the resulting adjudicatory process, I suggest John Dowd’s blog (“The NFL's investigation of and rules against Tom Brady are a travesty, and they've resulted in uncalled-for penalties. And it's all based on a report that lacks basic integrity, fairness and credibility.”). Dowd is an experienced federal prosecutor and led the investigation, among others, into Pete Rose and gambling for Major League Baseball. Most notably, he was sufficiently offended by the whole exercise to take the issue up with no relationship to the parties. Mike Florio at ProFootballTalk and Steph Stradley have also covered the story well.

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Topics: Left Shark, ProFootballTalk, ALS. Metro, Copyright Act, Pete Frates, David Portnoy, Indianapolis Colts, AFC Championship, Free Brady, Mike Florio, Barstool Sports, Jacqueline Kennedy, Trademark, John Dowd, Ice Bucket Challenge, Shepard Fairey, Major League Baseball, Copyright, Roger Goodell, Senator Obama, Hope, AFC Finalist, Andy Warhol, Tom Brady, Charlie Baker, Massachusetts Governor, Fair Use

Velvet Underground’s Copyright Claim Against Warhol Foundation is Dismissed, Trademark Case Goes On

Posted by Nicholas O'Donnell on September 12, 2012 at 11:36 AM

The U.S. District Court in Manhattan has dismissed the copyright claim filed by the Velvet Underground against the Warhol Foundation for the Visual Arts over the iconic “banana” image from the cover of the legendary The Velvet Underground and Nico album. Without reaching the merits of the claim, the court ruled that the Velvet Underground had agreed previously not to sue on any copyright theories. Reporting of the decision has been spotty at best, however, ranging from declaring a “win” for the Foundation, to suggestions that the copyright question was decided. In fact, the Court did not reach the copyright issue, and the Velvet Underground still has other trademark-based claims that remain very much alive and unaffected by the decision.

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Topics: Trademark, banana, Warhol Foundation for the Visual Arts, Copyright, The Velvet Underground and Nico, the Velvet Underground, Andy Warhol, intellectual property, Nico

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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