Copyright in America

Posted on: April 20, 2021 by

Every so often, we take a peek at the copyright situation in the USA. There are many reasons for this. Stateside, art and copyright cases are more plentiful than in the UK (and much of the world), perhaps because there is more at stake financially or simply because the culture is more litigious. Additionally, the ‘fair use’ doctrine in US law provides a handy defence to copyright infringement lawsuits and is difficult to pin down, making for particularly thorny disputes. And lastly, the cases are always most interesting to read.

There are a few to report this time round. On the topic of fair use, the case that has received the most attention comes from the Court of Appeals for the Second Circuit, which covers New York, involving the artistic use by Andy Warhol of a photograph of the late singer Prince: The Andy Warhol Foundation for the Visual Arts v. Goldsmith (decided on 26th March 2021). Lynn Goldsmith, who had taken the original photograph of Prince back in 1981, claimed copyright infringement against the Warhol Foundation in relation to a Warhol artwork that had incorporated the photograph for a 1984 feature in Vanity Fair, as well as 15 other silkscreen or pencil works, known together as the ‘Prince Series’ (see below for the original photograph on the left as compared to four of the Warhol works). After Prince’s death in 2016, the publisher Condé Nast (Vanity Fair’s parent company) decided to issue a tribute magazine dedicated to the singer. As a result, Goldsmith discovered for the first time how her original photograph had been used by Warhol. She contacted the Foundation to inform them of her rights in the photograph and was in the process of registering copyright therein when the Foundation filed a lawsuit seeking a declaratory judgment in its favour. She responded with a counterclaim of her own in which she claimed copyright infringement.

For most commentators, the big surprise was that Goldsmith won her infringement claim. At the trial level she had lost, but on appeal the fair use defence raised by the Foundation failed and her infringement argument prevailed. The result appears to show the court shifting the nature of the defence, especially when set next to a 2013 decision of the same court. In Cariou v. Prince, the Second Circuit had found in favour of artist Richard Prince for certain uses he’d made of photographs by Patrick Cariou. The key finding then for fair use had been that the artist’s appropriations were sufficiently ‘transformative’ of the original works: they created ‘new information, new aesthetics, new insights and understanding’ (Cariou v. Prince at 699) and so qualified for fair use. The apparent contrast between the two cases is being referred to as a Tale of Two Princes (meaning Richard Prince and ‘The Artist Known as Prince’) with several experts saying the shift in position by the Second Circuit will lead to confusion in the sector.

It should be remembered, however, that in Cariou v. Prince, the Second Circuit had only found the necessary transformation (and thus fair use) for 25 of Richard Prince’s series of 30 works. There remained five works which the court considered too close to call. These included what has become the most notorious example of the artist’s use of Cariou’s photo, a work called ‘Graduation’ (see it below left, with the original photograph on the right). The court had remanded these works back to the trial judge. There is a very good chance that ‘Graduation’ and those four other works would not have been considered transformative. Before the trial could proceed, however, the parties settled.

If one is looking to reconcile the ‘two Princes’, it is perhaps that Warhol’s use of the Goldsmith photograph is more akin to Richard Prince’s ‘Graduation’: not enough transformation of the original can be shown for an argument of fair use to work.

Several days after Warhol Foundation v. Goldsmith, the same Second Circuit delivered a judgement that may appear confounding in light of the above. In the case of Marano v. Metropolitan Museum of Art (decided on 2nd April 2021), a different panel of the court found against a photographer whose picture of rock star Eddie Van Halen had been used in an online exhibit by the Metropolitan Museum of Art. The exhibit featured the guitars of famous musicians and the claim related to the appearance of the photograph on a webpage dedicated to Van Halen’s ‘Frankenstein’ guitar.

Even though the picture had been used without the photographer’s consent and even though the image had not been altered in any way, the trial judge found in favour of the Museum on the basis of fair use. The decision was approved by the Second Circuit, holding that the Met’s exhibition had indeed transformed the photo by foregrounding the instrument rather than the performer. Meanwhile the webpage featured the guitar in two other photographs and accompanying text discussing the instrument’s creation, specifications and impact on rock music (see image of the webpage below featuring Marano’s photo).

The tension between the decisions of Goldsmith and Marano is palpable. In the first, a photograph was taken and noticeably altered by a visual artist, and though this might have created a new aesthetic it was not considered sufficiently transformative, while in the second, a photograph was used without any visual alteration, but was presented in a different context. Part of the justification in Marano was that the use was made by a nonprofit institution for an educational purpose – to inform the public about ‘Frankenstein’ – on a freely accessible website. Warhol’s Prince Series was more obviously commercial (12 of the pieces were sold or otherwise transferred by the Foundation between 1993 and 2004). Nevertheless while some internal logic might justify the divergent outcomes, the result is that the average artist or user is left somewhat in the dark. As is always the case with fair use the determination is context-specific and therefore difficult, if not impossible, to predict.

Added to the basket of cases from the US is a decision from early March relating to the moral rights of artists. It involved artist Pat Lipsky’s claim against a gallery that had displayed a digital copy of her work ‘Bright Music II’ (1969) in a way that distorted and discoloured the original. Though a default judgment (the defendants failed to appear), the New York Supreme Court accepted Lipsky’s allegations that this had been a violation of the artist’s rights. Here, the artist alleged that the distortion had caused prejudice to her reputation and standing, as well as confusing potential buyers by associating the distorted image with her work. Unusually, the claim was brought under New York state’s Artist’s Authorship Rights Act, rather than the better known federal law, the Visual Artists Rights Act of 1990. The reason for this was that the federal law only applies to treatments of the original work (or in certain cases limited edition prints), while the state law can apply to treatments of copies of a work, like the digital image at issue here.

Once again, American jurisprudence did not disappoint us. While it’s difficult to make generalisations, it does appear from Goldsmith that some of the more extreme fair use consequences of Cariou v. Prince may have been walked back. That said, the doctrine manifested itself rather fulsomely in Marano, though part of the difference was that it related to a free educational use by a nonprofit institution. As for moral rights, the Lipsky decision (a default judgment, so of limited presidential value) does show us that significant tools are available to artists in the US, a contrast perhaps to other English-speaking countries. In this regard, one could also think of the 5Pointz case, which came to its final conclusion last year, demonstrating that moral rights are alive and well in the US. As usual, useful and enlightening cases coming out of America, all arising within the span of just over a month.

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The feature image at the top of this blog piece is the author’s attempt at a ‘fair use’ of his own. It incorporates part of the cover design for the 1979 album ‘Breakfast in America’ by the band Supertramp (designed by Mike Doud and Mick Haggerty) with a copyright symbol, in order to link the article to the theme of America (as seen by an outsider) and copyright. It is hoped that, in addition to fair use under US law, this could also qualify as fair dealing for the purpose of quotation in the UK, as parody in the EU or other countries with a parody exception and as user-generated content in Canada. He would be happy to hear your thoughts on this via twitter @artlawalex.