Was Andy Warhol’s portrait of Prince a copyright infringement? How this case could reshape intellectual property law

The Supreme Court recently granted appellate review in Warhol v. Goldsmith, raising the somewhat alarming question of whether Warhol’s color portraits are illegal art. Specifically, the court case asks whether Andy Warhol was a copyright infringer or user of copyright when he made one of his infamous color prints of the musician Prince (per a cover of Vanity Fair) from an earlier black and white photographic portrait by Lynn Goldsmith on assignment for Newsweek.

In the copyright and visual arts communities, Warhol v. Goldsmith is a big deal. The Second Circuit Court of Appeals sided with the photographer, finding that the Warhol print was an illegal derivative version of the underlying photograph, raising the specter that many (if not all) Warhol prints made of the same way are illegal. It’s a frightening concept for art collectors and museums as well as artists who work in similar genres. But should anyone else care? And why the Court? In the current climate where abortion access, voting rights, religious freedom, affirmative action in higher education, and the legality of state gun regulation are actively debated at the Supreme Court, why is a contemporary art and photography copyright case a priority? Have Supreme Court justices suddenly stumbled upon a favorite (and previously obscure) new legal area of ​​intellectual property? Or is something else going on?

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The Supreme Court, it seems, thinks that intellectual property law, a federal statutory area in the first place, is one that needs clarification.

It turns out that the Supreme Court was grant certiorari in intellectual property cases at a rate never seen before. During the first three quarters of the 20th century, the Supreme Court adjudicated only a few intellectual property cases per decade, but over the past 20 years, the Supreme Court has more that doubled its IP workload. The Supreme Court, it seems, thinks that intellectual property law, a federal statutory area in the first place, is one that needs clarification. In doing so, it reshapes intellectual property law in light of changing technological and cultural trends for a new century.

For example, the Court has decided questions about whether genetic material can be patented and owned (Myriad), the trademark law prohibiting the registration of derogatory marks is consistent with the First Amendment (Tom), and copying key parts of computer code without payment or permission for use in a new technology environment constitutes piracy (Google versus Oracle). Today, the Court has decided to weigh in on Warhol and avant-garde art.

Most people know very little about IP, or they used to. Intellectual property law was once a field of technicians, an isolated legal specialty in practice and law school. Today, intellectual property law is a central part of legal education, and law schools are rapidly building centers for intellectual property and technology law to emphasize the importance of this area in practice. contemporary law. It is such a widespread field of law that is not only in law schools, but also taught in business schools, science and humanities graduate programs, undergraduate schools, and even colleges. secondary.

Mainstreaming intellectual property leads her from an obscure corner of the law to a public awareness that even teenagers gain when they are reprimanded for reposting photos without permission, encouraged to be “entrepreneurs and inventors” from their younger age and putting © symbols on their papers or artwork to assert copyright control. These phenomena transform copyrights, patents and trademarks into topics of daily importance. Today, it is not unusual to read information about intellectual property in the headlines or to have it popular tv shows.

The Internet’s ubiquitous copying ability can pose an existential threat to intellectual property law. But everyday creators and innovators can’t live without the internet.

So maybe the Supreme Court wants to intervene in this action, but why Warhol v. Goldsmith? Yes, the case is about resolving the doctrinal legal tension between the copyright holder’s right to control the preparation of derivative works and the secondary author’s right to transform those works into a new message for a new audience. But the case is more than that. Today, in the internet age of user-generated content, 3D printing, viral expression and the digital transformation of the public sphere – with authors, inventors, users and consumers all gloriously mixed – intellectual property is not just about markets and money. When we talk about intellectual property today, we are talking about freedom of expression, access to information and health care, the right to redress, fair wages and equal dignity. And when the Supreme Court, the narrator of national values, becomes involved in intellectual property litigation, it concludes its doctrinal discussions with those fundamental questions that sustain democracy, promote institutional resilience, and sometimes also redirect our attention to the good. common.

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The Internet’s ubiquitous copying ability can pose an existential threat to intellectual property law. But everyday creators and innovators can’t live without the internet. And although the copying and dissemination of technology is nothing new, what is new is that the Supreme Court has more to say on this subject. The Constitution speaks of intellectual property in terms of promoting the “progress of science and useful arts”. When the Court currently adjudicates intellectual property cases, “progress” is driven by deeply rooted constitutional values ​​such as equality, privacy, democratic accountability, self-determination, and distributive justice.

When we talk about intellectual property today, we are talking about freedom of expression, access to information and health care, the right to redress, fair wages and equal dignity.

And this, I presume, is why the Court granted revision of Warhol v. Goldsmith. Will this case concern a solo photographer whose work has been exploited without authorization or payment by a famous artist (question of equality, fair wages and power imbalance)? Will it be free access to information and images that are already in the public domain (e.g. Prince’s facial features) and the right of all speakers to make new expressions from of this information, whether cutting-edge art or everyday communication? Will the case focus on how photography is essential to the marketplace of ideas, but the media and news outlets fail to support the photography profession (a matter of resilience of democratic institutions), then that the art market prospers with the sales of NFT in millions of dollars? Or could the case focus on the fact that the question in dispute is not for a judge but for the jury, who may be as good (if not better) at assessing the “meaning” and “message” of the art, be it Warhol or Goldsmith?

Which value will predominate in the debate between the photographer and the Warhol estate is anyone’s guess. But surely when the Supreme Court speaks of intellectual property today, it will amplify these other core constitutional values ​​in terms that demonstrate the urgency of art and science for social justice today.


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