The Supreme Court of the United States has issued its long-awaited ruling in the dispute between photographer Lynn Goldsmith and the Andy Warhol Foundation for the Visual Arts (AWFVA) on May 18, 2023. The Court held the AWFVA’s delivery to Condé Nast magazine in 2016 of an Andy Warhol silkscreen from 1984 based on a 1981 Goldsmith photograph of the musician Prince did not satisfy the first factor (of four) of the statutory fair use elements. The Court took a narrow approach, explicitly declining to reach the question of whether Warhol’s original work would qualify for a fair use defense, holding only that the 2016 use did not.
(Williams College Museum of Art Security Badge, ca. 1993)
Read More
Topics:
Cariou v. Prince,
Copyright Act,
Philippa Loengard,
Campbell v. Acuff Rose Music Inc.,
Kernochan Center for Law Media and the Arts,
17 U.S.C. § 107,
Columbia Law School,
Andy Warhol,
Fair Use,
Andy Warhol Foundation for the Visual Arts,
Syracuse University,
Condé Nast,
Kagan,
Sotomayor,
Roberts,
Titian,
Lynn Goldsmith,
Vanity Fair,
Thomas,
Giorgione,
Goya
A new year, a new Richard Prince appropriation and fair use dispute. Readers will recall both the controversial 2013 Second Circuit decision on Prince’s dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series. Last year Prince raised the profile of this provocative exploration of the bounds of copyright with the high profile “Instagram” show in which he enlarged Instagram posts and sold them for north of $90,000 each. Prince has now been sued for copyright infringement by photographer Donald Graham, whose image was used in one of those works. Will this be more of the same, or will Prince suffer a reversal of fortune? Even adopting a liberal interpretation of the 2013 opinion, it looks from here like he may have a problem, but the final word will almost certainly not come for quite some time.
Read More
Topics:
Cariou v. Prince,
Richard Prince,
Second Circuit,
Instagram,
Larry Gagosian,
Fair Use,
Rastafarians Patrick Cariou
Fox News has petitioned the Second Circuit Court of Appeals to overturn an adverse ruling over use of the iconic photograph from September 11, 2001, known as “Raising the Flag at Ground Zero.” Rightly taking issue with the mostly unhelpful guidance left by Cariou v. Prince, Fox News and personality Jeanine Pirro (recently in the news for the interviews with her as part of HBO’s The Jinx about Robert Durst) have asked for the extraordinary step of appealing the denial of their motion for summary judgment. While that motion probably won’t succeed in the short term for reasons discussed below, the issue will likely end up in the Court of Appeals at some point. The application that the defendants suggest, however, seems like an exception that would swallow the rule.
Read More
Topics:
HBO,
Cariou v. Prince,
9/11,
Raising the Flag at Ground Zero,
The Jinx,
Second Circuit,
World Trade Center,
September 11 2001,
Robert Durst,
Fox News,
Jeanine Pirro,
Justice with Judge Jeanine,
Instagram,
Copyright,
Herald News,
Twitter,
The Record,
Fair Use,
Thomas E. Franklin
Looking forward to two great art and law events this week at the New York City Bar, both at 42 West 44th Street. Hope to see many of you there!
Read More
Topics:
consignment,
Cariou v. Prince,
Judith A. Bresler,
The Importance of Being Transformative,
Copyright Fair Use,
P.C.,
Judith Prowda,
authentication,
Kirkland & Ellis LLP,
Dean R. Nicyper,
Howard N. Spiegler,
Authenticity Issues and Recent Developments,
Stacy Lefkowitz,
Has Transformative Use Gone Too Far?,
Berkeley Center for Law and Technology,
Google Books,
The Law Applicable to Art Consignments,
Garcia v. Google,
Restitution,
Dale Cendali,
Pamela Samuelson,
Copyright,
Cowan Liebowitz & Latman,
Visual Arts and the Law,
Berkeley Law School,
Judge Denny Chin,
Sotheby’s Institute,
Fair Use,
Richard Dannay,
Art Repatriation and Restitution
After GoldieBlox announced with great fanfare that it would withdraw its claim seeking a declaratory judgment that its use in a video of the Beastie Boys song “Girls” was a fair use under the Copyright Act, many assumed that was the end of it and that the only point for discussion was GoldieBlox’s motivation. As we pointed out at the time, however, that “offer” was not accompanied by a dismissal of the already filed lawsuit. Presumably, the Beastie Boys either declined, or failed to respond, because the band has now answered the Complaint and filed counterclaims, alleging copyright and trademark infringement.
Read More
Topics:
Cariou v. Prince,
Copyright Act,
Campbell v. Acuff Rose Music Inc.,
Green Day,
Michael Diamond,
Adam Yauch,
“Girls”,
GoldieBlox,
Copyright,
Adam Horowitz,
Beastie Boys,
Fair Use
Patrick Cariou, after winning his copyright claim against Richard Prince in the District Court in 2011, suffered a stinging reversal earlier this year when the Second Circuit found in Prince’s favor as to his use of Cariou’s Yes, Rasta series in the Prince Canal Zone collages. The Second Circuit decision has been widely derided by copyright analysts, who apart from the relative merits of Cariou vs. Prince found the decision unclear as guidance to future artists and copyright holders. For the Art Law Report’s coverage of the case, click here.
Read More
Topics:
Cariou v. Prince,
Richard Prince,
Roy Orbison,
Canal Zone,
Patrick Cariou,
Campbell v. Acuff Rose Music Inc.,
Yes Rasta
The Ninth Circuit has ruled in favor of the band Green Day in a copyright case that gives much better guidance on fair use and transformativeness than this year’s earlier Prince v. Cariou Second Circuit case. Despite copying an entire image, in the backdrop of a video that showed onstage at a multi-million dollar concert tour, the appeals court upheld judgment in Green Day’s favor because the use added new meaning and purpose, and thus was transformative. It is a victory for expressiveness, but more importantly, a useful set of instructions that Prince failed to give.
Read More
Topics:
Cariou v. Prince,
Derek Seltzer,
Roger Staub,
Graffiti Art,
Green Day,
21st Century Breakdown,
East Jesus Nowhere,
Copyright,
Ninth Circuit,
Jesus Christ,
Performance Environmental Design,
Scream Icon,
Fair Use
