Is A Painting Based On A Photo Of Prince Fair Use Or Copyright Infringement? SCOTUS Will Decide


It’s now much easier than ever to capture photos of someone else and then create a picture inspired by the image. The work could be a reflection of the artist’s personal style. The artist may have put in an enormous amount of time to ensure that the work precisely represents the essence of the photo. However, can the artist obtain the copyright to their artwork along with the legal rights and security it confers?

In order to be eligible for protection under copyright the work of art must be a unique piece that has authorship. However, if an artist bases his work on a photograph which one is it, who is the original author? The person who created the painting or the photographer that created the original material? If the latter the painter has produced the work as a copyrighted work and require a license for marketing the work. If the first then the artist has changed the material from which they started into a work that is their own to the point of the law on copyright.

Do the lines between transformational and derivative works seem blurred? It is likely that SCOTUS will bring clarification to the situation in the months ahead. The 28th of March was when the court decided to hear this Second Circuit case addressing this matter, Andy Warhol Foundation for the Visual Arts, Inc. in v. Goldsmith.

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A Dispute Over An Image Of Prince

The inspiration for the case is an image of the singer Prince which photographer Lynn Goldsmith licensed to Vanity Fair in 1984. The magazine was granted permission to give the image to an artist who could utilize it as a reference for the creation of a picture of Prince. Vanity Fair chose Andy Warhol as the illustrator. Warhol is well-known for his unique pop art images, produced 16 art pieces that were based on the photograph taken by Goldsmith of Prince. But the licence was only granted to him to make an exhibition and then publish it.

After Prince died in 2016 Vanity Fair reprinted Warhol’s portrait and credited his foundation, the Andy Warhol Foundation (AWF). Goldsmith was able to discover the existence of the Warhol’s Prince Series and realized her image was used in a way that did not require an authorization.

If Goldsmith inquired AWF concerning their Prince Series, they filed an application for a declaratory ruling at District Court, seeking a ruling that there was not copyright infringement , or that the Prince Series was “fair usage.” Goldsmith responded by claiming copyright violation. Its District Court ruled for AWF in fair use reasons However, Goldsmith appealed to the Second Circuit, which Second Circuit overturned the ruling for Goldsmith’s benefit.

The Standard For Fair Use and Transformative Works

Fair use can be a defense against copyright infringement which allows creators to make use of copyrighted work in situations where doing so would hinder the artistic creativity copyright law is designed to promote. In determining fair use for the copyrighted works the courts consider four elements:

  1. The reason and nature of the use, such as the extent to which it is commercial character or to be used for non-profit educational purposes
  2. The character of the copyrighted work
  3. The size and amount of the part utilized in connection with the copyrighted work in as a whole
  4. The effects of usage on the marketplace or value the copyrighted piece of work.

The fourth and first factors tend to be the most crucial in analyzing fair use by courts. In 1994’s case Campbell in v. Acuff-Rose MusicInc., SCOTUS held that, under one of the factors the reason or nature of the activity can be described as “transformative,” this can shift the balance toward an award of fair use and not infringement where other factors tilt in the opposite direction.

in Campbell , the group 2 Live Crew used singer Roy Orbison’s hit song “Oh Pretty Woman” as the foundation for an impromptu parody. Although the song parodied was heavily influenced by the song’s lyrics and music the original song, the court ruled that it was fair usage due to the fact that the parody was of a distinctive character and a different goal. Very few artists will allow other artists to use their creations, therefore the fair usage doctrine step into protecting this type of expression.

What is transformative fair usage when it comes to the visual arts? For instance, in the Second Circuit case Blanch v. Koons AG, artist Jeff Koons used a piece from a magazine image in a collage . He was charged with copyright violation. Koons prevailed on a fair use argument because his intention to use the photo and in relation to the collage, changed what the picture meant.

But, in Cariou v. Prince, artist Richard Prince was not able to establish any special significance in his paintings in which he used unlicensed content taken from the photographs of Cariou. The court still ruled in fair-use grounds certain works due to the fact that even though there was no any evidence of significance, some pieces were visually distinct to the original material that they were deemed to be revolutionary. As Justice Holmes famously warned in the 1903 case of SCOTUS, Bleistein v. Donaldson Lithographing Co. Judges do not have the capacity to render reliable artistic judgments in copyright disputes.

In this case, the plaintiffs assert they claim that Warhol changed the Goldsmith photo to an ode to celebrity. In the end, the District Court found the paintings have a different significance in comparison to the photograph because the changes made by Warhol diminished the human element that was evident in the original material.

The Second Circuit reversed, finding the modifications weren’t enough to change the work , and the material that was the basis was easily identifiable in the painting of Prince. The court was hesitant to declare the work transformative as it would weaken the protections granted to the derivative work.

Fair Use In Google LLC v. Oracle America, Inc.

Google LLC v. Oracle America, Inc., that refined the Campbell standards for fair use within the context of computers in 2021. It also granted AWF an opportunity to re-evaluate its position. Justice Stephen Breyer, a ex-copyright expert, wrote the decision.

In his talk on fair usage, Breyer noted that a visual artist can obtain copyright protection in a artwork which “precisely reproduces” the logo of a copyrighted artist as his use can be transformative to reflect on the culture of the culture of consumerism. Some think this is an homage to the famous artworks that depict Campbell’s Soup cans created by (you probably guessed you guessed it) Andy Warhol.

AWF demanded a rehearing context of Oracledecision. It was decided that the Second Circuit issued an amended opinion, stating it was not satisfied that this Oraclecase didn’t alter its ruling as the ruling was specifically aimed at software. Additionally, the intention and nature of the usage was different from the original artwork and made it to be transformative. Warhol did not duplicate the logo of an advertising company to create art, but he copied the work of an artist, and therefore it had an identical purpose. which means that his copy wasn’t enough transformational. Dissatisfied with the amended decision, AWF petitioned SCOTUS for certiorari to determine the norm to be used in this particular case.

Are There Any Circuit Split?

The petitioners claim that the opinion of the Second Circuit caused an unintended circuit division. The petitioners claim that they claim that the Second Circuit created a new rule that judges cannot examine in depth the purpose or significance of an work that is in no way different than a work previously done.

They compare this case with the one in an Ninth Circuit case, Seltzer v. Green Day Inc III. In that instance the designer of Green Day used an image of a face screaming by an artist on the street Dereck Seltzer, who had no authorization for the backdrop for a video video during the tour of Green Day. The picture was then placed in the form of a collage that was virtually unaltered and a red cross was added over the top.

While the photo was Seltzer’sown, the court ruled it was Green Day had imbued the image with a new significance. Green Day used Seltzer’s image in a way to criticize the hypocrisy of religion, which is a central theme of their music, and Seltzer intended for the image to represent youth culture, and unending anxiety. Since Green Day’s usage provided a new interpretation in the imagery, the effect proved transformational and the court ruled that it was an appropriate use.

The defendants, who represent Goldsmith do not believe Goldsmith’s Second Circuit created a circuit that was split. They claim that Warhol’s photo is of the same intent or significance as Goldsmith’s that is, it’s a graphic depiction of Prince. They further point out the effects on the market that Warhol’s image has that harm the demand to license Goldsmith’s image according to the fourth fair use aspect.

It was also noted that the Second Circuit opinion also thought Warhol’s style wasn’t distinctive enough from that of Goldsmith’s. The respondents noted that deeming the image of Warhol to be transformative due to his well-known style creates the possibility of a “plagiarist right” within the law of copyright for well-known artists. They also pointed out they noted that Goldsmith herself is a renowned photographer, who employed her expertise to create Prince to be a model, and frame his original photograph.

Policies Questions at Stake

The petitioners caution that the test used by the Second Circuit of fair use may cause severe harm to the arts world. The other side of the argument are museums and artists that could face liability under copyright when they display paintings that are based on images. It is possible that they will be required to take down works of cultural important to them that unintentionally violated.

Goldsmith believes that such drastic steps won’t be required under the Second Circuit test. Goldsmith doesn’t wish to hinder creators to publish and distribute their work, however she wants protection from copying of her own work in this particular case. There are the recording and photography artists that are seeking to defend their right to grant licenses to the work of others. It’s up to the SCOTUS court to make it clearer for artists on what is considered as transformative fair-use when works are derived clearly from the same source.

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