Interesting photography copyright decision at the Supreme Court yesterday: Goldsmith vs. Andy Warhol Foundation

It appears AWF agreed to and paid for a single-use license fee originally, i.e., not 'fair use.' Then later wanted to cite fair use to use the image again, and not pay, even though the later use was also for commercial purposes.

I tend to agree that this decision follows the law.

Other things that make this 'interesting' is the feud between Kagan and Sotomayor:

nypost.com

Elena Kagan, Sonia Sotomayor trade jabs in Andy Warhol copyright case

Supreme Court Justice Elena Kagan appeared to take umbrage at Justice Sonia Sotomayor’s majority opinion in a copyright case involving Andy Warhol and Prince, telling readers in her dissent that sh…
nypost.com nypost.com
 
wlewisiii said:
Better article at NPR:

Ultimately the majority decision stomps on fair use and will lead to a feeding frenzy of infringement suits.
Click to expand...
No, my understanding is that "fair use" has a pretty limited scope, which is generally for noncommercial purposes. AWF was trying to somehow bootstrap its meaning into a theory to protect a new work that's based on the old. The right approach for that situation is to obtain a license from the creator of the original work. And the license that was obtained was basically for a one-time use. That to me struck me as the critical fact here.

I would have to go back and read Kagan's dissent to get the full import, because the excerpt quoted in the NY Post article was a little hard to follow. But the public disagreement was certainly interesting.
 
This is the key...nothing else to see: "All that matters is that Warhol and the publisher entered into a licensing transaction, similar to one Goldsmith might have done. Because the artist had such a commercial purpose, all the creativity in the world could not save him."
 
I stopped at Warhol licensed the photograph for a one-time use. If using the image fell under "fair-use", he never would have licensed it in the first place. Had he gotten unlimited use, would have been different. He did not, they should have gotten a license for using the photograph.
 
Sonnar Brian said:
I stopped at Warhol licensed the photograph for a one-time use. If using the image fell under "fair-use", he never would have licensed it in the first place. Had he gotten unlimited use, would have been different. He did not, they should have gotten a license for using the photograph.
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I believe it was actually the magazine that licensed the image, and then commissioned Warhol to use it. If a license fee was originally paid, out of caution or decency, that says nothing about whether the ultimate use meets the standard for being 'transformative'. To my casual eye, I would say it does, but I wonder if the fact that the work was commissioned, and therefor effectively commercial was more important.

I can sympathize with the photographer. Having been at the receiving end of blatant plagiarism, I know it does not feel good. Most of these cases never make it to court, as ours didn't, because the other party has money and bigger lawyers, to avoid the risk of loosing over a technicality.
 
wlewisiii said:
Better article at NPR:

Ultimately the majority decision stomps on fair use and will lead to a feeding frenzy of infringement suits.
Click to expand...

I think you’re right. In that NPR article, one legal opinion bothered me:

"If the underlying art is recognizable in the new art, then you've got a problem," said Columbia Law School professor of law, science and technology Timothy Wu…
Click to expand...

So the many parodies of American Gothic, to cite just one example, are an infringement if no license is given?
 
This case is being rather badly misrepresented in many places, perhaps because Warhol's work still remains controversial 50 years after he created it.

Warhol licensed the use of Cynthia Goldsmith's portrait of Prince for a single use derivative work, to be published only once as a collaborative work between the two artists. Warhol produced 16 versions, and Vanity Fair chose the one they liked best and published it under the credit of both artists - as specified in the license.

After Warhol's death, his estate decided to publish the whole series without license, consent, or the knowledge of the photographer, Cynthia Goldsmith. She sued for copyright infringement since the Warhol license was for a single collaborative work, not 16 solo works. The Warhol estate stupidly chose defend their actions on the basis of Fair Use, but since the publication of these images were for profit, that defense was easily shot down. The only connection to Fair Use is that someone attempted to use it to defend the theft of commercial art.
 
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