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  • Curt Levey

SCOTUS Hears Warhol Copyright Case in which CFJ Filed Amicus Brief

In an oral argument replete with references to The Shining, Mork & Mindy and the like, today the Supreme Court heard the case of Lynn Goldsmith, a renowned photographer whose 1981 photo of Prince was copied by Andy Warhol in a series of silkscreen images. The Andy Warhol Foundation (AWF) licensed one of the silkscreens (“Orange Prince”) to Conde Nast in 2016, giving no credit or payment to Goldsmith. AWF argues that Warhol’s silkscreen constituted “fair use” of Goldsmith’s work because it added “new meaning or message” to the original, making it “transformative.”

Earlier this year, the Committee for Justice filed an amicus brief in Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith in support of Goldsmith. The brief was authored by John Reeves (lead counsel) of Reeves Law and CFJ president Curt Levey.

Committee for Justice president Curt Levey issued the following statement today:

This case presents the Supreme Court with an important opportunity to clarify the breadth of the critical “fair use” doctrine in copyright law, which allows limited unlicensed use of portions of a copyrighted work in certain circumstances.

As CFJ’s brief explains, AWF is effectively asking the Supreme Court to hold that “anytime an author reproduces someone else’s original work in its entirety, but superimposes his own subjective interpretation upon it, the new work is transformative under the fair use doctrine.” As a number of Justices noted today, that reading of transformative use would encompass turning a book into a movie. Yet the law is clear that that requires a license.

Common sense alone tells us that Orange Prince is no more transformative than a book-to-film adaptation. In fact, as Justice Kagan noted today, if Andy Warhol weren’t famous, people would say “All he did was take somebody else's photograph and put some color into it.”

Andy Warhol was a creative genius. But, as our brief explains, AWF fundamentally misconstrues the Copyright Clause as being a utilitarian instrument that does nothing other than advance creativity, without regard to property rights. When Justice Kagan mentioned today that copyright law fosters creativity, Justice Jackson reminded the Court that copyright law is also about a “property interest.”

CFJ’s brief concludes that “neither the text of the Copyright Clause, nor the history of copyright law, nor this Court’s precedent can support [AWF’s expansive] reading.” We urge the Supreme Court to affirm the Second Circuit’s holding and rule that Warhol’s silkscreen infringes on Goldsmith’s fundamental civil right to the fruits of her labor in creating the original Prince photo.

The Committee for Justice got involved in this case because central to its mission is the preservation of the Constitution's protection of individual liberty, including the right to the fruits of one’s own labor, which the Constitution’s Copyright Clause protects.



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