The US government backed a finding that an Andy Warhol print used on a magazine cover infringed a photo of Prince, as friend-of-the-court briefs continued to pour into the US Supreme Court on Monday.
The brief from the US solicitor general and US Copyright Office criticized the Warhol Foundation’s argument that the print was fair use because the colorized version added new meaning to Lynn Goldsmith’s photo. It was one in an amicus barrage backing Goldsmith in the past week, answering a slew filed two months ago arguing the high court should reverse of the US Court of Appeals for the Second Circuit and find fair use.
The first non-software fair use case before the Supreme Court in decades figures to at least help courts refine how they evaluate fair use and the line between transformative and derivative. The case directly pits “appropriation artists,” who borrow from other works to develop their own creations, against photographers. But groups from various creative industries, law associations, academia, public interest groups, and beyond have offered their two cents in the form of more than three dozen third-party briefs.
The US government echoed others by saying reversal “would dramatically expand the scope of fair use” and erode derivative rights. Warhol-backers have said failure to reverse would chill free expression and creative output of artists who build new expressions with the aid of existing works.
The government’s brief criticized the Warhol Foundation’s overly expansive view of transformativeness—both in its influence over the “character and purpose of the use” factor and its purported ability to nullify other factors. Derivative works such as book-to-film adaptations often introduce new meanings or messages, but that by itself has never been seen as enough to justify copying, it said.
The US brief backed the Second Circuit’s claim that the analysis may have produced a different result if the same print were used differently—say in a museum or accompanying an article about Warhol’s work. But it said that in this case the print served the same purpose as Goldsmith’s photo: depicting Prince to accompany a magazine article about the late musical artist. It added the Warhol Foundation didn’t even assert that the Goldsmith photo was necessary to express its message.
The government, which asked to participate in oral arguments, also said the foundation’s argument that “Warhol’s unique style is the very thing that gives the Prince Series its distinct message” essentially created a “celebrity-plagiarist privilege” to fair use.
Other groups that backed Goldsmith include associations for actors, book publishers, graphic artists, photographers, entertainment lawyers, and US Senator Marsha Blackburn (R-Tenn.).
‘Violates’ First Amendment
A June brief from the Authors Alliance backing the Warhol Foundation addressed the Second Circuit’s treatment of the first factor. The alliance characterized it as shifting from “purpose and character” of the new work to “overarching purpose and function.” That, the group said, created a broad test that “elevates superficial similarities” over “expression meaning and message” as in Supreme Court precedent, making it more likely a court would find a common, broad purpose.
“In particular, nonfiction authors would be less able to rely on fair use when drawing from existing works to create new works of authorship that advance public knowledge,” the Authors Alliance said.
A group of university professors argued the Second Circuit misstepped by focusing on the visual similarity of the new work to the original and the recognizability of the original in the use. Under the Second Circuit’s logic, the meaning and message of the works becomes “irrelevant” if the works are too similar in appearance, their brief said. That “violates the fair use doctrine and the First Amendment” and “will chill the creation of new art,” they said.
Other groups filed briefs supporting neither party that stressed various points of the fair use doctrine.
The American Intellectual Property Law Association noted that no factor, or part of a factor like transformativeness, “should dominate fair use analysis.” It warned that allowing transformativeness to dominate could eclipse an author’s exclusive derivative works right. But it also said the purpose or meaning of a work should be considered, though based on a reasonable perception of the work rather than subjective views of the creator or other individuals.
The case is Andy Warhol Found. for the Visual Arts Inc. v. Goldsmith, U.S., No. 21-869, Amicus Briefs submitted 8/15/22.