On June 17, the News Media Alliance, together with the Authors Guild and others, submitted an amicus brief with the Supreme Court in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith. The case concerns a photograph of the singer/songwriter Prince, taken by Goldsmith in 1981, that was later used by Warhol to create a series of unauthorized artworks. Goldsmith found out about the works following Prince’s death in 2016. The Andy Warhol Foundation subsequently filed a suit for declaratory judgment that the works were not infringing, while Goldsmith filed a counterclaim for infringement. Earlier, the U.S. Court of Appeals for the Second Circuit found for Goldsmith, holding that Warhol’s works were not fair use. The Warhol Foundation appealed to the Supreme Court, which granted certiorari with regards to the “transformative use” test under the first fair use factor. In its brief, filed in support of neither party, the Alliance notes the delicate balance between authors’ right to create derivative works and the fair use doctrine, noting that publishers often rely on both. Arguing that the Second Circuit analyzed the issue largely correctly, the brief discusses how an overly broad definition of “transformative” could threaten the derivative work right and notes the importance of considering how much the secondary work’s value derives from the entertainment or aesthetic value of the original work in certain cases. The brief also emphasizes the importance of analyzing all fair use factors together, instead of overly relying on part of one factor. Read the Alliance’s amicus brief here.
Members of the News/Media Alliance staff have contributed to this post.