SCOTUS Prince ruling against fair use in Goldsmith Andy Warhol case may connect to upcoming AI issues
As has been well-documented, the United States Supreme Court recently ruled in favor of photographer Lynn Goldsmith in finding that Andy Warhol’s Prince series was not a transformative use of Goldsmith’s photograph under fair use analysis. As it pertains more directly to the Right of Publicity, it is interesting to note that in Comedy III, Warhol’s Marilyn was the cited example of a transformative work. Be that as it may, in light of fast-developing discussions pertaining to Artificial Intelligence (AI), the SCOTUS Warhol ruling may provide support for the argument that AI creative output is a derivative work of the original. We’ll see.
At the bottom of this entry is a link to more detailed analysis of the Copyright Restoration Act bill introduced by Senator Hawley in mid-May 2022, but for this entry, I will offer just a few observations. The bill seeks to curtail copyright duration and recast it in the former model of life of the author plus 28 years with an optional 28-year renewal. An explanation accompanying the bill uses the word “woke” twice in one sentence, and seems premised on the idea that the current copyright duration model was simply a Republican handout to Disney.
It could be interesting if someone were to research whether the prior legislative activity leading to the current copyright duration model can rightly be characterized as purely a Republican effort, or merely a handout, but the legislation was processed and deliberated over. The quotations accompanying the introduction of the bill seem to make clear that the bill is not about good, needed legislation, but rather some form of political posturing, which may not be the best foundation for legislative activity or intellectual property recognition. While the former model of 28 years with a potential renewal window has generated a lot of legal work for some due to its complexity and susceptibility to being manipulated, it could also be a good point to research whether the 28 plus 28 renewal is an efficient, clear and fair model to utilize. There are good reasons the copyright model moved on from the former structure.
What happens in the copyright realm often makes it way to the Right of Publicity realm. It seems the bill is not likely to pass, but it could be an entry worth marking for posterity.
For more information on the bill, see:
Don’t Say Copyright: lexology link to Frankfurt Kurnit Klien & Selz analysis article
US Supreme Court to consider Andy Warhol’s Prince Series in relation to copyright fair use and transformative test
You can find information concerning the dispute between the Andy Warhol Foundation (AWF) and photographer Lynn Goldsmith elsewhere, such as the factual underpinnings, lower court rulings on the case to date, and the arguments on either side easily enough in other place. Given the recent acceptance of a writ of certiorari by the United States Supreme Court (SCOTUS), I will simply note a few details that could be interesting to watch from a Right of Publicity perspective.
First, it is interesting to consider that in Comedy III, the court specifically cited Warhol’s Marilyn as the example of a transformative work, in crafting and applying its transformative use test to the Right of Publicity. Often lost in discussion of the case and reference thereto, the rightsowners of the Three Stooges (Comedy III) won the case on Right of Publicity grounds in relation to the commercial activities that had occurred in relation to a charcoal sketch of the Three Stooges by the defendant. The original work of art itself was not really the issue, but rather, the activities connected to that work were found to constitute a Right of Publicity violation. The Judge carefully articulated a test for deciding such situations, thus advancing the transformative use test for Right of Publicity purposes.
In the Warhol dispute concerning Lynn Goldsmith’s Prince photograph, the issue is of a copyright nature. Still, it is interesting that in a notable prior case (Comedy III), Warhol’s Marilyn was cited as the example of a transformative use. Now, in the AWF / Goldsmith matter the very question of whether Warhol’s rendering of Prince is transformative takes center stage.
Second, in teaching Comedy III this semester after news of SCOTUS accepting AWF’s petition, a question was raised whether Warhol perhaps used a reference photo in creating his Marilyn work. The inquiry is intriguing, though perhaps only for academic reasons. Without knowing the specifics, it seems plausible that if Warhol used a reference work for creation of his Prince work, it is possible he did the same for creation of his Marilyn work. The implications, if so, can be considered elsewhere.
Third, it is important to note that the AWF Goldsmith matter to be decided by SCOTUS, with a decision expected sometime in 2023, ought to be confined to a copyright decision. Any Right of Publicity involved would be that of Prince, and it is assumed that the rightsowners of Prince’s publicity rights are not part of the matter. SCOTUS is good at keeping the issues it is considering confined to only that which is in front of the Court at that time. In other words, no matter what SCOTUS decides in the AWF Goldsmith matter, it is expected to be a copyright decision only.
Last, and despite the observation in the preceding paragraph, certain Right of Publicity tests and analytical constructs often borrow from the copyright realm. If the transformative use test happens to be recast or adjusted by SCOTUS, it would not be surprising to see future holdings considering the Right of Publicity in relation to a Comedy III-type transformative use test take into account what the Supreme Court finds in the Warhol Goldsmith matter concerning Warhol’s Prince series.
An image that can be found in an image provider’s database marked “public domain” does not make it so. Obviously, the recent B.J. Novak odyssey illustrates how far things can go sometimes, but that does not mean his image actually was public domain, that ad agencies and companies were free to use his image on products or in advertising, or that he was without recourse (though he has indicated not being inclined to pursue the end-users). The term “public domain” (like many aspects of intellectual property) gets misused often. The headline of a recent article “How your photo could end up in the public domain – and used in ads around the world” takes a substantial leap and demonstrates the point, though the substance of the article may be helpful.
Just a quick note based on the Second Circuit’s recent ruling in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, where it determined that Warhol’s Prince series was not transformative and therefore was subject to copyright provisions in relation to the reference photograph Warhol used. The court went through a fair use analysis, and the case was primarily concerning copyright, but it is interesting to contrast this decision with the Comedy III case, which was primarily Right of Publicity-related. In Comedy III, the Three Stooges artwork was held to not be sufficiently transformative, and the court used Warhol’s Blue Marilyn as the example of a work that would, in contrast, and in the court’s estimation, be sufficiently transformative. I’ll let those motivated to seek more run their own searches rather than post links here, as there is no lack of content, analysis and discussion being offered on this recent ruling. I have not, as yet, seen reference to the contrast with the Comedy III case, so I thought it may be useful to note it here.
Departing from the usual Halloween release date, Forbes issued its annual top-earning deceased celebrities list on Friday, November 13th in 2020. A few takeaways, in no particular order:
1. Unsurprisingly, given the worldwide pandemic, almost all the reported numbers are down. Some may have more immunity than others, and those that went up, like Dr. Seuss were bolstered by television, movie and media deals. Some of that may be one-time bursts.
2. Elvis Presley was closing in on a 50% decline. Graceland, as a tourist destination, no doubt accounts for much of that given closures in 2020.
3. Prince is down yet again another year further from his death, as has been the trend. The summary on Prince mentions only music sales.
4. Those with the misfortune of making 2019’s list due to early departure, XXXTentacion and Nipsey Hussle, are gone.
5. Those with the misfortune of making 2020’s list due to early departure include Kobe Bryant and Juice WRLD. It will be interesting to see if Kobe Bryant is a one-time, one-year entrant or will make next year’s list as well.
6. Not-much-of-a-prediction: Eddie Van Halen will be on next 2021’s list. Though he passed away over a month prior to the release of the 2020 list, that is neither enough time to account increased sales, nor enough time to process his passing into a list that was no doubt already well underway in October.
7. The article includes a statement about its methodology, which includes sources I use when appropriate in valuations.
Last, a word about the often used term “delebrity” in relation to deceased celebrities. I get it, though it’s never really hit me as particularly clever or useful as a term. More importantly, no one I know who actually works with the heirs, family, and estates of notable deceased icons uses this term. It’s hard to take someone seriously who uses this term in their scholarship, publications, or writings. But keep using it, those who do, because it provides a revealing tell.
Here is a link to Forbes’ 2020 list: https://www.forbes.com/sites/maddieberg/2020/11/13/the-highest-paid-dead-celebrities-of-2020/?sh=37a974e03b4b&utm_source=Licensing+International+Database&utm_campaign=b3b89e5adb-EMAIL_CAMPAIGN_2019_12_18_01_57_COPY_01&utm_medium=email&utm_term=0_ec0e484a60-b3b89e5adb-397655773&mc_cid=b3b89e5adb&mc_eid=a31363c945
The lawsuit filed by Jason Mraz against MillerCoors, filed December 4, 2019 illustrates various important points and takeaways. View the complaint here: Jason Mraz v. MillerCoors complaint
Reportedly, MillerCoors was a sponsor of the 2019 BeachLife Festival in California where Jason Mraz performed. His performance of course included one of his hit songs, I’m Yours. The complaint alleges that MillerCoors posted an advertisement on Instagram for Coors. The advertisement includes a clip of Mraz performing the song, the Coors logo, display of a can of Coors Light, the phrase “presented by Coors Light,” and in the comments, the added statement “Kicking off summer with the World’s Most Refreshing Beer at the BeachLife Festival.”
While a complaint is not the same as a ruling, at least two of the important takeaways from this case are:
- Social media is advertising.
- Sponsors do not acquire broad rights to third-party intellectual property simply by serving as a sponsor.
Both of these issues come up with some regularity in the business of representing a rights owner and the right of publicity. Claiming that a social media post is somehow different from advertising on the basis that it is a fluid, user-controlled environment, or that serving as a sponsor entitles the sponsor to utilize the rights of anyone other than the party they are in contract with as a sponsor, both can lead to serious problems.
The Ninth Circuit Court of Appeals in Maloney v. T3 Media, Inc., Case No. 15-55630 (9th Cir. April 5, 2017), recently issued the latest installment in the age-old supposed showdown between Copyright and the Right of Publicity and the issue of preemption. The Court states in the holding that preemption can occur “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.”
To be clear, copyright does not automatically preempt the Right of Publicity. The two doctrines protect distinct interests and, have separate policy purposes. Preemption generally requires a very specific fact pattern. The assumption seems to be that if the Right of Publicity co-exists in tandem with a copyright interest, preemption must be applicable. That is not the case, and there are countless examples of uses, situations and fact patterns where various rights or interests apply simultaneously without one preempting the other. I read Maloney as a fairly confined, and specific ruling on a distinct fact pattern.
Here is a link to an article with more elaboration on the specifics of the case:
Looks like my predictions in the May 9, 2012 edition of the Indiana Lawyer were prescient. Specifically, in response to the debut of Tupac’s hologram, I went on record stating that this technology is likely to lead to both licensing and new business opportunities as well as litigation over unauthorized use of the technology by third parties with no relationship to the individual or entitlement to the underlying intellectual property rights. Here’s a link to that Indiana Lawyer article: http://www.theindianalawyer.com/-hologram–performance-by-tupac-creates-legal-questions-for-ip-lawyers/PARAMS/article/28758?page=1
Mr. Eriq Gardner of The Hollywood Reporter has posted an intriguing article on the exchanges between the lawyers for the Marilyn Monroe Estate and Authentic Brands, majority owner of the intellectual property rights to Marilyn Monroe, and Digicon Media, which claims to have “copyrighted” the virtual Marilyn. I put “copyrighted” in quotes because that is a big, and dubious, assertion to make. Digicon Media claims to have grand plans for the virtual Marilyn.
Here’s a link to the full article in The Hollywood Reporter, complete with actual copies of the correspondence between the parties:
This article and the various documents embedded within the article provide a fascinating glimpse into the inner workings of representing and protecting the rights of a deceased individual. This appears to be a transparent (pun intended) attempt to make a play for Marilyn Monroe in the virtual realm. The Right of Publicity, as well as the various trademarks pertaining to Marilyn Monroe, should have no trouble reaching into that realm and ensuring that the attempt to “copyright” the hologram Marilyn would somehow give Digicon Media ownership over any aspects of Marilyn Monroe.
Interesting case of the tattoo artist asserting a copyright claim for the appearance of his infamous Mike Tyson-face tattoo appearing in Hangover II. It raises a slew of interesting intellectual property questions that I’m not going to research or try to answer definitively here. But in short, I see a number of problems with the tattoo artist’s position.
I understand that no objection was made to the appearance of the tattoo in the first Hangover movie. Perhaps that is because only Mike Tyson appeared in the first Hangover movie, whereas in Hangover II, in addition to Mike Tyson appearing again, actor Ed Helms’ character gets a similar, or perhaps identical tattoo on his face.
Maybe the argument from a copyright claimant in these circumstances is that the inclusion of his tattoo constitutes an unauthorized display in violation of his exclusive section 106 rights under the Copyright code. Similarly, perhaps the tattoo on Ed Helms’ character constitutes an unauthorized derivative work, or an unauthorized copying.
If the activities complained of in Hangover II are copyright violations, then the appearance of the tattoo in the first Hangover movie must also have been a violation. The tattoo artist could hardly object to Mike Tyson appearing in a film, and by virtue of the tattoo appearing on Tyson’s face, well, the tattoo is going to appear as well. At this point, there could be a viable estoppel defense to the assertion of the claim now, years after the first Hangover movie.
The notion of intellectual property in tattoo designs raises some novel questions. It is certainly possible to construct a scenario where a copyright, or trademark interests, can be manifest in a tattoo. If a person gets a Harley-Davidson logo tattoo, it is of a trademarked logo. If a person gets the lyrics to a song as a tattoo, it certainly could be of a copyrighted work. But what of a relatively simple configuration of angular lines, like the Tyson tattoo? Is that even an original work of authorship? Maybe. But who owns the copyright in the tattoo design? Might it be considered a work made for hire, vesting the rights in the recipient of the tattoo on whose skin it appears?
Or, perhaps there is an implied license allowing the recipient of the tattoo to display the tattoo publicly. Certainly, when taking the conspicuous step of tattooing a person’s face, the tattoo artist cannot simultaneously expect to enforce the exclusive rights of a copyright owner concerning the right to display, reproduce or even perform the work. Can the tattoo artist/copyright owner then only selectively enforce his copyright? Doesn’t this lead to the scenario that anyone who takes Mike Tyson’s picture is committing copyright infringement by making an unauthorized copy of the work, or perhaps even a derivative work? Displaying the image, then, as in the news, leads to the same result.
Since the tattoo is part of Mike Tyson’s skin and face, then when Tyson is acting and his face is engaging in expressions, delivery of dialogue, and such, can it be argued that the tattoo is engaging in a “performance?” Remote, but then so is this whole topic. I also credit another legal commentator for pointing out that human organs generally are not subject to intellectual property ownership. The skin is an organ. While the tattoo and ink are not organs, once permanently embedded in the skin, they would seem to be part of that organ. I’ll let you take a shot at piecing an argument together based on that interesting line of thought.
To the extent that the tattoo artist could construct a copyright claim in response to at least certain activities, it seems clear to me that this particular form of intellectual property would also be subject to considerable fair use exceptions. Some of the above points exemplify why.
Just to further complicate things, I’ll mention that the tattoo is so closely and unequivocally associated with Mike Tyson that the tattoo might actually raise potential Right of Publicity considerations. Those issues don’t exist in the Hangover matter because Tyson obviously consented to appear in the film. But hypothetically, I can envision a scenario where that tattoo design on a person’s face, let’s say appearing in an advertisement of some kind, could constitute a violation of Mike Tyson’s Right of Publicity. In this regard, the claim might be even stronger than the copyright claim concerning Hangover II.
Here’s a link to more on the Hangover II tattoo copyright dispute: