A U.S. Supreme Court lawsuit over Prince’s image alteration could have serious implications for photos of athletes and teams. Andy Warhol Visual Arts Foundation. v. Goldsmithone of the most famous intellectual property litigation in recent years.
1981, Newsweek Renowned rock and roll photographer Lynn Goldsmith was hired to photograph Prince. One photo is a portrait, Newsweek not executed.
In 1984, when Prince’s popularity soared, vanity fair Goldsmith was paid $400 for the right to use an unpublished portrait of Andy Warhol as an “artist reference”. created 16 portraits. vanity fair Published one of the purple-skinned princes (playing on his best-selling album) purple rain) about the story “Purple Fame”. The magazine credited Goldsmith for providing the source photos. Warhol, on the other hand, died in his 1987, and ownership of his work was transferred to the Foundation.
Fast forward to 2016. After Prince’s death vanity fairparent company Condé Nast learned about the other 15 images and paid the foundation about $10,000 for the rights to post Warhol’s illustration of Prince with orange skin.
One of the problems is that goldsmiths are not being paid or credited.
Goldsmith alerted the Foundation to possible copyright infringement, and the Foundation sued Goldsmith in the Southern District of New York for a declaration of non-infringement. Goldsmith countersued, alleging copyright infringement. The foundation claimed Warhol’s work was protected by “fair use.” Under copyright law, the doctrine of fair use permits the copying of another’s work for criticism, comment, reporting, education, and other purposes. The court applies his four-factor balance test, which weighs (among other factors) the purpose and quantity of copying and the degree to which copying adversely affects sales of the original work.
In 2019, Judge John Kertl sided with the Foundation, emphasizing that Warhol’s work turned the Goldsmiths’ photograph into a new and creative expression. Warhol also used unnatural colors to convey “a different aesthetic and character than the original.”
Two years later, the Second Circuit Court of Appeals overturned this decision. Judge Gerald Lynch explained that Warhol’s work was not transformative because both images “are of the same famous musician and have an overlapping customer base.” The series was created by removing certain elements such as depth and contrast from the photographs of the 1980’s, but still retaining the ‘essential elements’ of the photographs and providing a ‘overarching view of the two works in question here. The purpose and function are the same.”
The Second Circuit’s ruling shocked the IP world. This contradicted the long-standing understanding that a work is transformative if it conveys a different meaning than the original, such as altering the “aesthetics and character” cited in the original judgment. Critics have argued that the Second Circuit “collapsed into whether the two works were substantially similar (a related question before fair use consideration was required), resulting in a fair use dismissal.” I claimed. The Supreme Court agreed to litigate, and a number of interested parties have filed opinions.
A brief by a group of copyright law professors led by Harvard Law School’s Rebecca Tashnet highlights its impact on sports.quick reference Busha v. Baltimore RavensRevolves around the Ravens’ “Flying B Logo” from the mid-1990s. A man who developed a very similar logo was sued for infringement after seeing it appear (among other things) in stadium photos and videos on NFL Network and his NFL.com. One video, “Top 10: Draft Class,” briefly shows the Flying B logo during his 1996 draft class segment for the Ravens. In another “Top Ten: Draft Busts,” the logo briefly appears.
The U.S. Court of Appeals for the Fourth Circuit determined that Ravens’ use was transformative. The display and video “used the Flying B as part of a historical record, conveying past drafts, major events in Ravens history and player bios,” the court said.
Tushnet’s brief seizes on that ruling, emphasizing that transformative use includes “using the imagery of a sports team’s logo in a way that is recognizable in a historicized context.” They are concerned that the Second Circuit’s “new focus on recognizability, or visual similarity,” may “distort the doctrine of fair use.” If the relevant test wasn’t whether the images had new meaning, but whether the images were too similar, Ravens might have had a problem.
Professor also calls attention to lawsuit over Michael Jordan’s iconic image life magazine. In the 1980s, life Photographer Jakobus Rentmeester was hired to photograph Jordan to capture the iconic shot that was published in the magazine.
Nike later used the photo, believed to be inspired by Rentmeester, in its marketing campaign.
Rentmeester sued Nike for copyright infringement, but lost. The 9th Circuit ruled that “a photographer who uses highly original lighting techniques or novel camera angles to create a picture cannot be used by other photographers to create new images of their own using the same techniques”. I can’t prevent you from doing it.”
That’s the way the law usually works, and it makes sense to most people, but if a court upholds the Warhol Foundation, according to a copyright professor, “Michael Jordan without the permission of Jacob Rentmeester It is possible that no one was able to take a photo of the leaping. simply.
Not everyone agrees. Opposition groups argue that strong copyright protection is needed to protect those who create original works.
For example, Tennessee Senator Marsha Blackburn, who has many Nashville artists and musicians in Tennessee, wrote in her Amicus brief that copyright law “should be construed in line with Congress’ intent.” , which reflects the vision of its founders.” Maintaining an economic incentive for creators to create original works of artistic genius. Strong copyright protection has provided a legal environment in which American musicians, authors, artists, photographers and other content creators have thrived for centuries. “
Meanwhile, a group of law professors at Columbia Law School, including Jane Ginsburg (daughter of the late Judge Ruth Bader Ginsburg), argue that Congress never intended “a court to reduce fair use to a transformative investigation.” is doing.” Ginsburg urges courts to remember that “variability of use should be balanced with the commercial purpose of such use.”
The court is expected to issue a ruling during this term, which ends next summer.
Tushnet said Sportico Courts may go in one of several directions, including “narrow decisions focused on the appropriation of art” or “broader decisions affecting many creative reuses.” She added that if the Supreme Court sided with Warhol, it could “seek to distinguish between the types of historical/biographical uses that constitute fair use” in cases such as the Ravens case.