SCOTUS’ ‘Narrow’ IP Ruling Over Prince Pic May Have Broader Impact, Attorneys Say
Westlaw Today
Westlaw Today
Joe Gratz spoke to Westlaw Today about the U.S. Supreme Court’s ruling over the Andy Warhol Foundation for the Visual Art Inc.’s licensing of a silkscreen portrait based on a Prince photograph taken by Lynn Goldsmith.
The question presented to the court was whether the first of the four fair-use factors provided in Section 107 of the Copyright Act, 17 U.S.C.A. § 107, allowed the foundation to license an image of Warhol's "Orange Prince" to Condé Nast to illustrate a magazine dedicated to the musician after his death in 2016. That factor provides that courts should consider "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." The court ruled that, under that factor, the silkscreen was not “transformative” of the photo and both artworks carried a substantially similar purpose.
Joe said he foresees “negative consequences for creativity” and “a potential chilling effect on art,” because artists wishing to base a new work on an existing piece may be unsure whether the new work will have any value.
“On these particular facts I think the court wasn’t giving enough weight to the difference between the purpose of any use of a Warhol silkscreen portrait and purpose of the original photo,” Joe said.
He added that the court’s narrow framing of the issue “may reflect on opportunities for the court to take more fair-use cases so they can explore exactly what all of these rules mean in scenarios other than just a few.”
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