Tennessee Republicans Defend Songwriters in SCOTUS IP Case

Photographer Lynn Goldsmith sued the Andy Warhol Foundation in 2017, claiming Warhol violated her copyright when he created a series of silkscreens reproducing Goldsmith’s portraits of musician Prince. Warhol added new elements to the portrait and licensed it to Vanity Fair. A Manhattan federal court sided with the foundation, but the 2nd U.S. Circuit Court of Appeals reversed the decision, saying Warhol’s silkscreens didn’t constitute a “transformative use” because they shared the same purpose as Goldsmith’s portraits and retained essential artistic elements of the original. The Supreme Court scheduled oral argument Oct. 12.

Groups filed amicus briefs last week. DOJ and the U.S. Copyright Office sided with Goldsmith, as did Sen. Marsha Blackburn, R-Tenn., the Recording Industry Association of America, the National Music Publishers Association, the Association of American Publishers, Dr. Seuss Enterprises and a group of California entertainment lawyers. The Electronic Frontier Foundation sided with Warhol’s organization, along with the Copia Institute, the Authors Alliance, and various copyright and art law professors. The Motion Picture Association, News Media Alliance, Authors Guild and Copyright Alliance filed neutral arguments, though MPA questioned the validity of the foundation’s fair-use arguments.

One of Congress’ intentions with the Copyright Act was to incentivize and protect original work and provide broad protection against use of copyrighted material in derivative works, Blackburn’s office wrote in its filing. Warhol’s proposed fair use test would “dissolve copyright protections whenever a copycat artist subjectively intended to impart a new meaning or message to prior protected work” and would “jeopardize the vibrant media and entertainment sector,” Blackburn wrote. The Supreme Court needs to protect intellectual property rights so Tennessee creators can “thrive,” she said in a statement.

The office for Sen. Bill Hagerty (R-Tenn.), who didn’t formally file, said in a statement to us Thursday that he's an advocate for Tennessee songwriters and musicians receiving “timely and appropriate royalties for their work, and he strongly supports robust protection of their intellectual property rights.”

Warhol’s infringement involves “commercial licensing” of the Prince image, the U.S. Copyright Office argued in its filing with DOJ: “Goldsmith’s photographs have previously been used for the same purpose, and licensing of the sort at issue here usurps the market for the original photograph.” Agreeing Warhol’s work conveys a different meaning or message than the original would “dramatically expand copyists’ ability to appropriate existing works,” the CO said. Adopting the foundation’s “broad and subjective” fair use test would undermine rightsholders’ ability to assert, control and protect valuable copyrights, RIAA argued in a joint filing with NMPA.

The court should reinforce fair use protections by clarifying that “where a use is at least minimally transformative and/or noncommercial, the rightsholder bears the burden to show market harm,” EFF wrote in favor of Warhol. EFF cited the high court’s fair use decision in Google v. Oracle (see 2104050047), in which the Supreme Court found Google’s copying of Oracle’s Java code for Android to be fair use. The court “held that a transformative purpose is nothing more or less than one that alters the original to create a new expression, meaning, or message,” EFF said. When a “reasonable” audience finds “new meaning or message,” a work is transformative, a group of copyright law professors argued, backing Warhol’s fair use. Law that “suppresses expression” isn’t constitutional, said the Copia Institute.

Though the Motion Picture Association didn’t formally take a side, it argued the Warhol foundation hasn’t advanced a legitimate argument for qualifying fair use: Its proposed “sweeping expansion of fair use in which any use that adds a new ‘meaning or message’ to a copyrighted work is deemed a ‘transformative use’” would erode incentives for creativity and new expression, it said. NMA and Authors Guild wrote a joint, neutral filing but argued an “overly broad definition” of transformative could “severely impair the derivative-work right, to the detriment of consumers of expressive works."