• 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® > Fraud or Art? Supreme Court...
    Member
    David H. Siegel
    Visit Profile

    Fraud or Art? Supreme Court Provides Copyright Clarity in Warhol Case

    Fraud or Art? Supreme Court Provides Copyright Clarity in Warhol Case

    The US Supreme Court recently handed down their long-awaited decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith, providing much-needed clarity on the boundaries of fair use in copyright. Fair use limits the exclusive rights of the copyright owner, so that it is not an infringement to copy, perform, transmit, distribute copies, or display a copyrighted work under certain circumstances.

    Fair use is not well defined in the statute, but four factors are set out:

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Historically, discussion of fair use has focused on the first factor, mostly in trying to assess what besides “a commercial nature” and “nonprofit educational purposes” determine the “purpose and character of the use.” Key to the character of the use is the question of whether it is “transformative” – whether it is so different from the original work in content and purpose that it has virtually become something else. Like many other cases, Warhol v. Goldsmith was determined, in the lower courts, based on “transformativity.”

    The Case

    In 1981, rock artist photographer Lynn Goldsmith took a photograph of the artist Prince. In 1984, Andy Warhol, on behalf of Vanity Fair and with a license from Goldsmith, made a silkscreen version of the photograph that Vanity Fair used as a magazine cover. At the time, Warhol also made a series of other works based on the photograph. When Prince died 30 years later, Vanity Fair licensed one of those other images from Warhol’s heir, the Andy Warhol Foundation for the Visual Arts, which it used to illustrate an article about Prince, without paying or crediting Goldsmith.

    The Foundation’s defense to a claim of infringement has been that the use was “transformative” in purpose and character and therefore protected by fair use. The District Court agreed with the Foundation, stating that Warhol’s works, when viewed side-by-side with the original photograph, “have a different character, give Goldsmith’s photograph a new expression, and employ new aesthetics with creative and communicative results distinct from Goldsmith’s.” The District Court then found that the transformative character of Warhol’s works outweighed all the other three fair use factors. However, the Second Circuit disagreed, finding that the works were not transformative, just being a change in style but still recognizably the same depiction of the same person, without significant new expression.

    The Supreme Court held that both lower courts’ approaches were wrong – the question of the first factor is not merely whether a work is transformative at all, but the degree of transformativity and new creativity must be balanced against other elements of the purpose and character of the use, such as whether it is commercial and whether it shares a purpose with the original work. Ultimately, the Supreme Court restated the question of “whether the use … has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use.”

    The Rule

    While the Supreme Court’s decision adds some complexity to the first fair use factor, it also adds significant clarity to the questions of what constitutes a transformative use and whether a transformative use is necessarily a fair use. Most importantly, it clarifies that a creator who adds their own creativity to a use of another’s work for commentary or non-commercial purposes is likely protected by fair use. When the standard of new creativity and a changed purpose is applied to a commercial use, particularly a competing use, a fair-use is much higher.

    Trademarks

    This decision may also shed light on the still-awaited decision in VIP Products v. Jack Daniel’s, often known as the “Bad Spaniels” case. While trademark fair use is not enshrined in statute with the four factors of copyright fair use, the balancing of the degree of creativity and changed purpose against the commercial nature of the use could be similarly applied in that case, where a dog toy manufacturer created and sold a chew-toy aping a Jack Daniel’s bottle. If so, that case may come down to the Justices’ assessment of the creativity and thought needed to come up with “Bad Spaniels” from “Jack Daniels.”

    Clarifying fair use boundaries and emphasizing the degree of “transformativity” is crucial for the future of copyright cases. If you are interested in this topic, or any other aspects of copyright or trademark matters, please feel free to contact me at dsiegel@norris-law.com or the intellectual property attorneys at Norris McLaughlin about disputes over intellectual property.

    Member
    David H. Siegel
    Visit Profile

    Related Posts

    Lamar Jackson Successfully Opposes Dale Earnhardt Jr.’s Claim to No. 8 Who Owns a Vibe? Content Creators Battle Over Aesthetics of Social Media Posts You ® Mine: Valentine’s Day Trademarks & Trade Dresses

    Share

    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