Copyright fair use, like beauty, is in the eye of the beholder. ANDY WARHOL v. GOLDSMITH

Copyright fair use, like beauty, is in the eye of the beholder. ANDY WARHOL v. GOLDSMITH

United States copyright law uses the phrase, original works of authorship, to describe what is protected by copyright law.  This phrase is given an expansive meaning which covers creative works other than books.  Music, movies, photographs and computer software are all considered works of authorship.  When one of these works is created, the creator is granted a copyright to their work.  A copyright is a set of exclusive rights granted to the creator of a new expressive work.  A copyright gives its owner the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.  A copyright owner can combat copyright infringement by filing a lawsuit.  In that lawsuit a plaintiff may request an injunction to prevent infringing activity from continuing and monetary damages for copyright infringement which has occurred.

Copyright law grants a copyright owner a significant amount of control over their work.  However, there are some limits to the rights granted by copyright law.  When a copyrighted work is copied for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work, that copying is considered a fair use.  Fair use is an affirmative defense to copyright infringement.  Technically copyright infringement is committed, but that infringement is excused because a fair use promotes the greater purpose of advancing the arts and sciences.  Fair use is codified in 17 U.S. Code § 107 of United States Copyright Law, but determining whether a use is a fair use is left to the court presented with the fair use defense.  Because fair use is so fact specific it is helpful to study court cases to learn when a court will rule that fair use applies.

The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith, 17-cv-2532 (2017) is a case that deemed the copying of a photograph by a painter to be a fair use.  This case revolves around a photograph of a singer named Prince Rogers Nelson, known to the public as simply Prince.  The defendant in this case took a picture of Prince.  The defendant took the photographs at her studio and exerted artistic control over the photo shoot.  One of the photographs taken by the defendant was licensed to a magazine for use as an artist’s reference.  The magazine sent the photograph to Andy Warhol to create a painting based on the photograph.  Andy Warhol is a famous american painter that is famous in his own right.  Warhol created several paintings based on the photographs, one of which was used by the magazine in an article about Prince.  After Warhols death in 1987 the plaintiff gained ownership of the paintings created by Warhol.  When Prince died in 2016, the magazine that originally commissioned the Warhol paintings published a commemorative issue that featured all the Warhol paintings of Prince.  The defendant alleged that the plaintiff’s paintings infringed on the defendant’s copyright, the plaintiff filed a lawsuit requesting a declaratory judgement of non-infringement.

The trial court found that the Warhol paintings were transformative and a fair use of the defendant’s photographs.  The paintings were found to be transformative because they could “reasonably be perceived to have transformed” the subject of the painting.  The trial court found that the photographs depicted Prince as vulnerable, while the paintings depicted him as larger than life.  The style of the paintings were also identifiable as Warhol creations.  These factors taken together strongly favored a finding of fair use with respect to the purpose and character of the use.  For the second fair use factor, the nature of the copyrighted work, neither party was favored.  For the third fair use factor, the amount of the copyrighted work taken, the court found that Warhol removed nearly all of the protectable elements of the photographs from the paintings.  Therefore the third factor favored a finding of fair use.  For the final fair use factor, the effect on the market for the copyrighted work the court found that the Warhol paintings were not substitutes for the photographs, therefore the license revenue from the photographs were not harmed.  The trial court found that the facts were so in favor of fair use, that the court granted summary judgement in favor of the plaintiff.

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