Supreme Court Flash (May 18, 2023) – High Profile Copyright Case

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Mestaz Law Supreme Court Flash

This morning the Supreme Court handed down its decision in Goldsmith v. Warhol, perhaps the most high-profile copyright case to come before the Court in a decade. The case involves a prominent photographer, an even more prominent artist, and one of the best-known musical performers of our time. Celebrity photographer Lynn Goldsmith took a photograph of Prince in 1984. Andy Warhol borrowed the photograph, created his classic silkscreened stylization of it, and then marketed it as his own. Could Warhol claim it was fair use?

Today the Court said no. Warhol’s work might qualify for fair use, under traditional copyright law doctrine, if his work had given a different “purpose or character” to the original. To be sure, Warhol’s silkscreen gave the underlying work a new form of expression. But “[a]lthough new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character,” the Court emphasized, “it is not, without more, dispositive.” Warhol’s famous soup cans might qualify as fair use, the Court noted, because they were intended as a wry commentary on commercialism, while the original Campbell’s soup labels were merely intended to market a product. But here, Warhol’s work was for the same overall purpose of Goldsmith’s—to create a portrait of Prince for artistic purposes. That was not enough to qualify for fair use.

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This decision was watched especially closely by Mestaz Law because our counsel, Matt Hersh, wrote an amicus brief in support of the photographer in the case. We’ll provide a fuller analysis of this decision, and its implications for artists and copyright owners in the Phoenix community, in the coming days. In the meantime, don’t hesitate to let us know how we can help you protect your rights as an artist and a creator.

Today’s opinion can be found at this link. Matt’s amicus brief in the case can be found here.

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