Andy Warhol’s Prince paintings could face Supreme Court review, experts say

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The United States Supreme Court building in Washington, USA REUTERS/Leah Millis

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  • Warhol made a series of unauthorized works from a photograph of Prince
  • Estate warns fair use ruling could chill ‘whole genre’ of art
  • The court may want to clarify the copyright division doctrine

(Reuters) – A case sparked by Andy Warhol’s paintings of rock star Prince could prompt the U.S. Supreme Court to redefine what artists can legally get from the work of others.

The Andy Warhol Foundation asked the court in December to overturn a ruling upholding a photographer’s alleged infringement of Prince’s paintings, saying it ‘casts a cloud of legal uncertainty over an entire genre of art visual”.

The judges will consider at their conference on Friday whether to hear the case. They could use the dispute to clear up confusion about when artists’ use of others’ work is transformative enough under the copyright doctrine known as fair use to shield them from lawsuits. in matters of copyright.

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Photographer Lynn Goldsmith took photos of Prince for Newsweek in 1981. Warhol later made several unlicensed works that recreated one of his photos, which Goldsmith sued in 2016.

Last March, the 2nd US Circuit Court of Appeals agreed with Goldsmith that Warhol’s paintings did not make fair use of his photo, allowing his case to continue.

A federal judge in Manhattan initially found that Warhol’s works transformed Goldsmith’s portrayal of Prince as a “vulnerable human being” into a “larger-than-life iconic figure.”

But the 2nd Circuit said a transformative work must have a “fundamentally different and new artistic purpose and character”, and Warhol’s paintings were “much closer to presenting the same work in a different form”.

Rebecca Tushnet, a professor at Harvard University School of Law who led a group of copyright professors on a case supporting the foundation’s petition, told Reuters the case had “all the bells and all necessary whistles” for review by the Supreme Court.

The 2nd Circuit “tried to single out most of its previous cases in a way that really didn’t make sense” and “generates a ton of uncertainty, especially for the art,” she said.

Kate Lucas, an art lawyer at Grossman, said the Supreme Court may also want to avoid potential confusion around its fair use ruling for Google last year in a software dispute with Oracle, in which the judges concluded that Google had made fair use. software code from Oracle in the Android operating system.

Lucas said the judges might be concerned about the 2nd Circuit’s suggestion that their ruling in Google/Oracle is of “limited use” in copyright cases that don’t involve software.

“It’s also possible that the court has seen different circuits grapple with these concepts for some time now, and decides it’s time to clear things up,” she said.

Warhol Foundation lawyer Roman Martinez of Latham & Watkins told Reuters he hopes the court will take up the case “to reaffirm its longstanding support for the doctrine of fair use and freedom of artistic expression”.

Goldsmith’s attorney, Lisa Blatt of Williams & Connolly, did not immediately respond to a request for comment.

One of the last times the High Court addressed fair dealing in an artistic context was in 1994, when it unanimously ruled that rap group 2 Live Crew’s parody of “Oh, Pretty Woman” by Roy Orbison made fair use of the original.

The case is Andy Warhol Foundation for the Visual Arts Inc v. Goldsmith, United States Supreme Court, No. 21-869.

For the Foundation: Andrew Gass, Samir Deger-Sen and Roman Martinez of Latham & Watkins

For Goldsmith: Lisa Blatt of Williams & Connolly

Read more:

Google/Oracle not affecting Warhol’s fair use ruling, 2nd Circ says

2nd Circuit overturns Andy Warhol Foundation victory over Prince footage

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Blake Brittain

Washington-based correspondent covering court cases, trends and other developments in intellectual property law, including patents, trademarks, copyrights and trade secrets. Previous experience with Bloomberg Law, Thomson Reuters Practical Law and work as a lawyer.

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