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.
New York’s legislature may be closing in on passing a Right of Publicity statute with New York State Assembly Bill A5605C. If so, it would be a significant development in the Right of Publicity realm as New York has been conspicuously behind other states for a very long time. As of July 20, 2020, the bill was “amended on third reading” (here’s a link to the timeline and status of the bill which also has link to the PDF of the bill itself): https://www.nysenate.gov/legislation/bills/2019/A5605
Overall, my take is that this bill would be a step in the right direction, even as it would still amount to New York having one of more narrow or limited Right of Publicity statutes in the United States. For example, a forty year post-mortem provision is quite anemic, and creating a registry system sounds good on paper but in my experience is not particularly helpful yet introduces various problems. Video games are not on the list of exempted works, as they should not be, and also to its credit, the bill has meaningful provisions in relation to Deepfakes and the problems such technology present in the modern world.
The progress of this bill seems already to have traveled further than past efforts. Hopefully, tired refrains like “this bill exists only to enrich a few wealthy estates” are worn-out by now and find no traction. Does copyright and trademark exist only to enrich a few wealthy creators or companies? Observations of past legislative efforts in New York are addressed in the following link I made on the topic: https://rightofpublicity.com/observations-about-new-yorks-assembly-bill-a-8155b
British retailer Topshop has been selling apparel featuring Rihanna’s image, but without her permission. Apparently, Topshop responded to Rihanna’s objections by offering $5,000 and the statement that they don’t care if she approves or not. I like Rihanna’s chances in this lawsuit.