• Services
  • Attorneys
  • Media & Insights
  • Online Payment
Results may vary depending on your particular facts and legal circumstances. No aspect of this advertisement has been approved by the Supreme Court of New Jersey. A description of the selection methodology can be found here.
  • Services
  • Attorneys
  • Media & Insights
  • About Us
  • Delivering Value
  • Diversity & Inclusion
  • Meritas
  • Contact Us
  • Online Payment
    A
    Alternative Dispute ResolutionAntitrust & Trade RegulationAppellate Practice
    B
    Banking & Financial ServicesBankruptcy, Creditors’ Rights, and Financial RestructuringBeer LawBusiness Law
    C
    Cannabis LawConstruction LawCooperative and Condominium Law (Co-op & Condo)Criminal Defense
    E
    Economic Development LawElder Care & Special Needs LawElectronic Discovery ("E-Discovery")Environmental LawERISA & Employee BenefitsEstate Planning and Administration & Wealth PreservationExecutive Compensation and Employment Strategies
    F
    Food, Beverage & HospitalityFranchise Law
    H
    Health Care & Life SciencesHealth Care ProvidersHigher EducationHospitals and Health Networks
    I
    ImmigrationInsurance CoverageIntellectual PropertyIntellectual Property Litigation, Arbitration, and Dispute ResolutionIntellectual Property Portfolio Strategy, Management & LicensingInternational BusinessInternet Law
    L
    Labor & EmploymentLiquor Law, Licensing, Manufacturing, and DistributionLitigation
    M
    Media Law & Creative Economy PracticeMergers & AcquisitionsMunicipal Law
    N
    Non-Profit Law
    P
    Patent Preparation and ProsecutionPharmaceutical / Medical Devices / Pharma ServicesProducts and Consumer Liability DefenseProfessional LiabilityPublic Utilities
    R
    Real Estate, Finance, and Land Use
    S
    SecuritiesSolar Energy
    T
    TaxationTelecommunicationsTrademark & Copyright Protection & Enforcement
    V
    Venture Tech & Emerging Growth Companies
    W
    White Collar Investigations & DefenseWorkers’ Compensation
    • New Jersey
    • New York
    • Pennsylvania
    • Blogs
    • Articles
    • Podcasts
    • COVID-19 Resources

    Categories

    Copyright Copyright Infringement Copyright Licensing Copyright Office Copyright|Copyright Infringement|Intellectual Property Copyright|Copyright Infringement|Intellectual Property|Social Media Copyright|Copyright Infringement|Social Media Copyright|Intellectual Property Copyright|Intellectual Property|Social Media|Trademarks Court Decisions Double Patenting>Same Invention Double Patenting>Terminal Disclaimers Drafting Patents Drafting Patents>Claims Drafting Patents>Claims>Written Description False Advertising Federal Circuit Food & Beverage Food & Beverage|Intellectual Property Food & Beverage|Labeling|Legislation Food & Beverage|Trade Dress Food & Beverage|Trademark Infringement|Trademark Office|Trademark Registration|Trademarks Food & Beverage|Trademark Infringement|Trademarks|Unfair Competition Food & Beverage|Trademark Office|Trademark Registration|Trademarks|TTAB Food & Beverage|Trademark Office|Trademark Registration|TTAB Food & Beverage|Trademark Office|Trademarks Food & Beverage|Trademark Office|Trademarks|TTAB Food & Beverage|Trademark Registration|Trademarks Food & Beverage|Trademarks General In The News Intellectual Property Labeling Lanham Act Legislation Licensing Navigating the Patent Office Navigating the Patent Office>Examiner Interviews Obviousness/Inventive Step>Prima Facie Obviousness Patent Patent Eligibility Privacy Right of Publicity Social Media Supreme Court Trade Dress Trademark Infringement Trademark Infringement|Trademark Office|Trademark Registration|Trademarks Trademark Infringement|Trademark Registration|Trademarks Trademark Infringement|Trademarks Trademark Office Trademark Office|Trademark Registration|Trademarks Trademark Office|Trademark Registration|Trademarks|TTAB Trademark Office|Trademarks Trademark Registration Trademark Registration|Trademarks Trademark Registration|Trademarks|TTAB Trademark Registration|TTAB Trademarks TTAB Uncategorized Unfair Competition
    Blogs > More Than Your Mark® > Fair Use or Foul Play?
    Member
    Jeanne Hamburg
    Visit Profile

    Fair Use or Foul Play?

    Fair Use or Foul Play?

    The Supreme Court’s imminent decision in the Warhol matter will determine whether a series of Andy Warhol prints created from a Lynn Smith photograph of music legend Prince infringes Smith’s copyright.  The Court will either provide valuable guidance, or further confuse the analysis, of fair use under the Copyright Act.

    We previously reported on the Warhol case against Prince when the Second Circuit Court of Appeals decided the Warhol prints were not a fair use of the Smith photo.  The Second Circuit held Warhol’s prints did not “transform” the original Smith photograph by conveying a different meaning or message from the original because it is “recognizably derive[d] from the photo. The courts currently split on how to determine whether a work is “transformative” and whether the meaning of a purportedly transformative work should even be considered if the accused infringer slavishly copies the original. Indeed, the Second Circuit overruled a district court ruling that the Warhol prints were transformative because they depicted Prince as “an iconic, larger than life” figure rather than, as shown in the original, a “vulnerable uncomfortable one.”

    The Copyright Act sets forth multiple factors for determining whether a work is fair use but does not specifically set forth an exception for “transformative” works—this doctrine was created by the courts. Specifically, the statute sets forth the following factors which must be balanced in determining if a work is fair use or an infringement:

    · The purpose and character of the accused infringer’s use;

    · The nature of the work being copied;

    · The amount and substantiality of the work taken by the accused infringer; and

    · The effect of the use on the potential market for the work.

    The question for the Warhol Court is whether the “purpose and character” of the Warhol prints overrides the amount of the Smith photograph taken in creating them. Please visit us again when we report on its decision and the scope of its impact on the fair use doctrine.

    Should you have any questions about this post, or any copyright or other intellectual property matter, please feel free to contact me at jhamburg@norris-law.com.

    Member
    Jeanne Hamburg
    Visit Profile

    Related Posts

    Who Owns a Vibe? Content Creators Battle Over Aesthetics of Social Media Posts Lawsuit claims TEXAS PETE is deceptive Avastars and Dolls and the Emerging Metaverse

    Share

    Tags

    #copyrights #Jeanne Hamburg #litigation

    Helpful links

    • About Us
    • News
    • Services
    • Blogs
    • Attorneys
    • Articles
    • (COVID-19)
    • Award Methodology
    • Events
    • Join our Team
    Connect
    Online Payment

    Connect with Us

    • LinkedIn
    • Facebook
    • Twitter
    • Instagram
    • Youtube

    Join our growing team

    We are looking for quality attorneys to help us do more for our clients. At Norris McLaughlin, each attorney has the same opportunity to succeed whether you’re at the beginning of a career or pinnacle of the profession.

    Learn More

    Subscribe to our content

    Receive timely legal information delivered to your inbox

    This field is for validation purposes and should be left unchanged.
    © , Norris McLaughlin, P.A., All Rights Reserved. Attorney Advertising.
    VIEW OUR DISCLAIMER,  TERMS OF USE,  AND PRIVACY POLICY

    We use cookies to ensure that we give you the best experience on our website. If you continue to use this site we will assume you consent to our cookie policy. Learn more