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.

Read More

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

Here We Go Again?  Richard Prince Sued By Photographer Over Images of Rastafarian in Instagram Show

Posted by Nicholas O'Donnell on January 4, 2016 at 10:27 AM

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

Google Books, Fair Use, and Visual Art—Second Circuit Writes Decision That Would Have Helped Two Years Ago

Posted by Nicholas O'Donnell on October 23, 2015 at 11:42 AM

With much anticipation, the Second Circuit issued its opinion last week in the Google Books case (Authors Guild et al. v. Google, Inc.), brought by authors Jim Bouton (of Ball Four fame) and others against Google for the latter’s program of scanning millions of library books, whether or not those books are in the public domain. My overwhelming reaction to the opinion, however, in the realm of visual art, is what a lost opportunity the Prince v. Cariou decision was two years ago, and some optimism that the most recent decision will start to provide useful guidance for practitioners that has been harder to give with confidence since Prince. After two years of the preeminence of the first fair use factor threatening to dwarf everything with a “transformativeness” test that essentially any use could meet, Google Books (even while finding a fair use) restores some balance to that analysis.

Read More

Topics: Richard Prince, Campbell v. Acuff-Rose Music, Hildebrand Gurlitt, 510 U.S. 569, Teenage Mutant Ninja Turtle, Prince v. Cariou, Second Circuit, Canal Zone, Patrick Cariou, Toward a Fair Use Standard, Michelangelo, Suicide Girls, Inc., Google Books, The Legal Guide for Museum Professionals, Pierre Laval, Jim Bouton, Copyright, transformativeness, Fair Use, Nazi-Looted Art: Risks and Best Practices for Muse

Anish Kapoor Sculpture Dispute Tests the Legal Utility of Terms Like Plagiarism and Appropriation

Posted by Nicholas O'Donnell on August 21, 2015 at 5:11 AM

A sculpture in China that is remarkably similar to Anish Kapoor’s famous Cloud Gate in Chicago is highlighting how the colloquial use of words like appropriation and plagiarism, while useful and descriptive to distinguishing the creative process, can often confuse the issue when it comes to sorting out the parties’ legal rights. While the opinion here is that Kapoor has a good case for infringement (Cloud Gate-gate?), it is not the idea of plagiarism that would support his claim.

Read More

Topics: appropriation, Donn Zaretsky, Xinjiang, Infringement, Pressure, SuicideGirls, Foreign Sovereign Immunities Act, Freddie Mercury, Rahm Emmanuel, Ma Jun, Chicago Sun Times, Ice Ice Baby, David Bowie, FSIA, Karamay, Copyright, Cloud Gate, Millennium Park, The Art Law Blog, Anish Kapoor, Plagiarism, Fair Use

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.

Read More

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

Shepard Fairey Wanted on Vandalism Charge for Street Art in Detroit—Will This be the VARA Test Case?

Posted by Nicholas O'Donnell on June 25, 2015 at 8:10 AM

Detroit police have issued a warrant for well-known artist Shepard Fairey in connection with his recent visit to the city, on suspicion of vandalism. While Fairey was apparently in Detroit to paint a commissioned mural at One Campus Martius, he told the Detroit Free Press, “I still do stuff on the street without permission. I'll be doing stuff on the street when I'm in Detroit.” According to the Free Press:

Read More

Topics: Richard Prince, Jeff Koons, Patrick Cariou, Moral Rights, Andre the Giant, Graffiti Art, Visual Artists Rights Act of 1990, Barack Obama, One Campus Martius, Banksy Does New York, VARA, Banksy, Shepard Fairey, appropriation copyright, Copyright, 5Pointz, Hope, Detroit Free Press, Associated Press, Fair Use

Richard Prince, Social Media and the Public Domain: Reports of Copyright’s Demise are Premature

Posted by Nicholas O'Donnell on May 29, 2015 at 6:15 AM

Reactions to the Richard Prince Instagram story continue to filter in, and highlight the perpetual confusion between what is publicly available and what is in the public domain. They are not the same thing, with important legal consequences.

Read More

Topics: Richard Prince, Missy, Copyright Act, Prince v. Cariou, Canal Zone, Patrick Cariou, Suicide Girls, vulture.com, Yes Rasta, 17 U.S.C. § 107, Jerry Saltz, Instagram, Copyright, transformativeness, Fair Use, ArtNet, New York Magazine, § 107

Fair Use Fool me Twice, Shame on Me—Richard Prince Goes Trolling on Instagram But May Have a More Pedestrian Problem

Posted by Nicholas O'Donnell on May 27, 2015 at 10:35 AM

Few art law cases have received as much attention as that of Richard Prince and his dispute with Patrick Cariou over the latter’s Yes, Rasta photographs that Prince altered, defaced, and otherwise rearranged for his Canal Zone series. Prince has now garnered renewed attention for his appropriation of Instagram images in a set of works he has been selling at a Gagosian Gallery show called “New Portraits" (and in various other venues over the last few months). He escaped liability for infringement of Cariou’s pictures (though the case settled after remand; several infringement claims were still in play when the parties settled). Can he do so again? If this recent effort is not infringement, it certainly begs the question of whether the fair use exception has swallowed the rule. Lastly, Instagram itself may have prohibited the entire exercise in its terms of use, a possible avenue to short-circuit the entire copyright exercise.

Read More

Topics: “New Portraits", Richard Prince, Copyright Act, DoeDeere, 2LiveCrew, Prince v. Cariou, Roy Orbison, Canal Zone, Patrick Cariou, Internet, Yes Rasta, 17 U.S.C. § 107, Instagram, Copyright, Gagosian Gallery, transformativeness, intellectual property, Fair Use, § 107

Professional Artist Series at Danforth Art

Posted by Nicholas O'Donnell on April 1, 2015 at 2:26 PM

I'm pleased to be participating next month in the Professional Artist Series at Danforth Art in Framingham, Massachusetts. The Danforth is a wonderful museum and school that engages both the creation and exhibition of art across a broad community. It is a real treasure.

Read More

Topics: Massachusetts, Danforth Museum School, Jessica Burko, The Boston Globe, Cate McQuaid, Professional Artist Series, Events, Copyright, Nicholas O'Donnell, Museums, Sullivan and Worcester LLP, intellectual property, Fair Use, Art Law Report, Framingham

Fox News Seeks to Take Fair Use Questions Over 9/11 Photo to the Second Circuit

Posted by Nicholas O'Donnell on March 23, 2015 at 2:21 PM

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

Sullivan logo

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.

Meet the Editor

Subscribe to Blog

Recent Posts

Posts by Topic