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.
“Public Domain” understanding
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.
How photos end up in the public domain – and used in ads around the world
Student-athlete legislation & the NCAA’s Board of Governors adopting name, image and likeness policies
Yesterday, the NCAA’s Board of Governors voted unanimously in favor of allowing student athletes to earn money from their name, image, and likeness. NCAA Board of Governors Name Image Likeness
The NCAA’s announcement spoke of modernizing, and the Board issued guidelines and created a Working Group to respond to legislative developments concerning the issue. In other words, there is much yet to come. After opposing California’s bill, perhaps the NCAA felt forced to change its stance, and to be fair, it is a complicated issue.
A few observations, in no particular order:
1. As usual, the legal term for the interests being dealt with–the right of publicity–is rarely if ever used in reporting on the issues. It would help if its proper name was used, but since trademark and copyright issues are often referred to as “patents,” perhaps it is par for the course.
2. These developments really only put NCAA athletes on the same footing as other college students. A music major can perform and earn money. An art major can sell works and earn money. Having said that, unlike those examples, student athletes perform their craft entirely in the NCAA environment. They are on the school’s field, in the school’s stadium, wearing the school’s uniform bearing its valuable trademark, with a team, coaching staff, and opponent, all of which cost money not paid by the student athlete. The music or art major generally covers costs and handles logistics in performing or creating a work that leads to income. Still, the point has merit.
3. A subsidized education is valuable, and the majority of NCAA athletes will need an education for life after competitive sports. The NCAA system also provides a forum in which athletes develop and get recognized, and therefore reach the professional level. The amateur environment can hardly be said to have failed every student athlete up to this point.
4. Those affected by these developments constitute a very small percentage of NCAA athletes. Few NCAA athletes move on to professional sports. Of those who do, an even smaller percentage last more than a few years at the professional level. An even small number will earn significant money from their name, image, and likeness (correction: their right of publicity) outside of contractual compensation from the professional sports team.
5. I have seen at least some state that these developments put athletes in danger or that the right of publicity must be “fixed.” Suggesting that these developments will put student athletes in danger of entering into agreements that diminish their rights later on is a commentary on the nature of contracts. Pending legislation seems to be seen as an opportunity to attack established right of publicity architecture such as transferability, postmortem right of publicity, and the duration of recognition of the right of publicity. None of these issues are, or should be, part of the recent student-athlete legislation.
6. To the extent that these developments create the possibility of students being used commercially in relation to a team, such scenarios could implicate various intellectual property rights. Commercial use of footage of an athlete performing in an NCAA competition, or the school’s name and logo, may implicate rights that exist in parallel to the right of publicity. This observation explains why weight loss ads with Dan Marino or watch ads with Eli Manning depicted them with a generic football, but no Dolphins or Giants trademarks.
Time will tell.