The United States Copyright Office has submitted an opinion to the Supreme Court that argues that Andy Warhol’s use of Lynn Goldsmith’s photo of Prince was not fair use, sharing sentiments with opinions sent by NPPA and ASMP.
On March 29, 2021, the United States Circuit Court of Appeals, based in New York, found that the Prince series of artworks created by Warhol were not sufficiently transformative and ruled that they violated copyright of photographer Lynn Goldsmith – overturning the original verdict. The Andy Warhol Foundation appealed this decision to the United States Supreme Court.
In March 2022, the Supreme Court announced that it planned to hear Andy Warhol Foundation v. Goldsmith in October. The final decision will then have a massive impact on the visual arts community in regards to fair use.
Yesterday marked the last day that amicus briefs for the case could be submitted to the Supreme Court. As Cornell Law School explains, amicus briefs come from a person or group that is not a party to an action, but has a vested interest in the case and will submit an argument that , generally, aims to influence the decision of a court. Sometimes final judgments will refer to opinions that were sent to the court through an amicus brief.
Submitting a judicial amicus brief to the Supreme Court is much more complicated than submitting it to lower courts, and anyone who bothers to submit one does so on the assumption that the court, or at least its clerks, will read it.
Numerous amicus briefs have been submitted in this case, but two stand out as particularly important. The first is one submitted by both Mickey Osterreicher of the National Press Photographer’s Association (NPPA) and Thomas Maddrey of the American Society of Media Photographers (ASMP), who sides with Goldsmith and argues that the use of his photo by Warhol was not fair use and that the judgment of the lower court, which found in favor of Goldsmith, should stand.
“The fair use defense was never meant to give infringers a pass so long as they claim a new subjective ‘meaning or message’ in their derivative use, however it is used, and neither previous Court decisions nor common sense support this position. On the contrary, any new meaning or purported message is only relevant in the context of a purpose or use qualitatively different from that of the original”, support the NPPA and the ASMP.
“The role of the creative community in this country cannot be overstated. The depth and breadth of these creators exceed their collective output and contribute immeasurably to the understanding of our world. Almost nothing in our lives is spared by the professional creativity of photographers like Goldsmith and many other skilled writers, sculptors, painters, graphic designers, illustrators, musicians, screenwriters, poets, choreographers who act as both an economic engine and a cultural touchstone in society. These people, many of whom are represented by amici, are following this case closely because their livelihood depends on it.
While the support of the NPPA and ASMP is significant, another amicus brief was submitted that is particularly noteworthy: that of the United States Copyright Office. In it, the Copyright Office asserts that copyright issues, including those of fair use, are of particular importance to it and to the U.S. government as a whole.
“The issue presented also involves the expertise and responsibilities of other federal agencies and components. The United States therefore has a substantial interest in the Court’s decision in this case,” the amicus brief reads.
“Copyright law encourages the creation and dissemination of expressive works by granting copyright owners exclusive rights to the fruits of their creative efforts, while preserving leeway for secondary uses. . The doctrine of fair use is an important element of this statutory balance.
The Copyright Office takes the same position as the NPPA and the ASMP: the judgment of the Court of Appeals which found in favor of Goldsmith should be upheld.
As mentioned, the Supreme Court will see many amicus briefs sent to it on cases, but when a US government entity, such as the Copyright Office, sends one, it is very likely that the Supreme Court will pay particular attention to it. As a result, US government support for Goldsmith is hugely influential.
The Supreme Court is called upon to consider many cases and only accepts a small number. The fact that he agreed to hear this particular case means he has something to say about it, but what that will be won’t be clear until October. What is clear is that whatever the court decides will be extremely important to the interpretation of copyright law and fair use.